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Consumer protection and liability
Are airfares regulated in your jurisdiction?
Under EU Regulation 1008/2008 EU air carriers and carriers of third countries, on the basis of reciprocity, are free to determine air fares and air rates for air services in the Netherlands and the European Union. EU member states may not discriminate on grounds of nationality or identity of air carriers in allowing European air carriers to set fares and rates for air services between their territory and a third country.
Air fares available to the general public should mention all applicable conditions when offered or published. Prices should be inclusive of the applicable air fare, taxes, (airport) charges, surcharges and unavoidable and foreseeable fees.
Pursuant to the Tariff Decree on Scheduled Air Transport the minister for infrastructure and the environment must give prior consent for airfares for scheduled air transport services between the Netherlands and non-EU destinations when this is required under a restrictive bilateral agreement.
What rules and liabilities are air carriers subject to in respect of:
(a) Flight delays and cancellations?
EU Regulation 261/2004 on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights is directly applicable in the Netherlands. Under this regulation air passengers are protected in the event of denied boarding, delays and cancellations. Air carriers are obliged to either reimburse or re-route passengers in case of long delays and cancellations. Further, air carriers are obliged to offer passengers meals and refreshments; and in some cases, hotel accommodation and transport between the airport and the place of accommodation. Passengers may be entitled to the following compensation:
- €250 for all flights of 1,500 kilometres (km) or less;
- €400 for all intra-EU flights of more than 1,500km and other flights between 1,500km and 3,500km; and
- €600 for all other flights.
(b) Oversold flights?
Under EU Regulation 261/2004 passengers of an oversold flight should be asked to voluntarily surrender their seat in exchange for benefits agreed between the air carrier and the passenger. In case there are not enough volunteers, the air carrier must deny boarding to passengers.
(c) Denied boarding?
Under EU Regulation 261/2004 if passengers are denied boarding, air carriers must pay compensation amounts (see above) and reimburse the ticket price or re-route the passengers. Further, passengers are entitled to refreshments, meals and (if necessary) accommodation. However, if a passenger is denied boarding for reasons concerning the passenger himself or herself (eg, passport or visa problems, or for reasons concerning safety or security) the passenger is not protected under EU Regulation 261/2004.
(d) Access for disabled passengers?
EU Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air prohibits air carriers from refusing reservation or embarkation to passengers on the grounds of their reduced mobility or disability. The regulation also requires air carries to provide certain assistance to disabled persons and persons with reduced mobility.
(e) Lost, damaged or destroyed luggage?
The Netherlands is a party to the Montreal Convention. Under the convention, airline liability for checked luggage is limited to 1.131 special drawing rights (SDR) for each passenger. The airline is not entitled to invoke the limitation of liability in the event that it is proven that the damage was either caused with intent or recklessly, and with knowledge that damage would probably occur.
(f) Retention and protection of passenger data?
Dutch privacy legislation is laid down in the Data Protection Act, which is based on EU Directive 1995/46/EC. The directive will be replaced with the general Data Protection Regulation as from May 25 2018. Data protection legislation is enforced in The Netherlands by the Dutch Data Protection Authority.
Under the Data Protection Act and the Dutch Data Protection Authority, data can be processed fairly and lawfully only by a controller for specified explicit and legitimate purposes, and as long as the data is relevant.
There are various grounds for legitimate data processing which do not require the consent of the data subject, such as the performance of a contract to which the data subject is a party or compliance with a legal obligation.
The data subject has the right to information regarding the processing of its personal data. Subsequently, the data subject may have the right to rectify, block or erase data.
As a controller in the sense given by the Data Protection Act, an airline has the general obligation to implement appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction, accidental loss and unauthorised access. The controller must inform the Dutch Data Protection Authority and the involved data subjects when a data breach occurs.
If loss of data has occurred while no appropriate technical and organisational measures to protect the data were in place, data subjects may be able to seek damages against the controller. However, it will normally be difficult for a data subject to prove that it has suffered substantial damages as a result of the data loss.
There are several possible penalties relating to a breach of the Data Protection Act. The penalties will become more severe under the General Data Protection Regulation.
What rules and liabilities apply to the air carriage of cargo?
Under the Montreal Convention an air carrier is liable for damage caused during carriage by air. In some cases the air carrier can dismiss liability – for example, when the carrier can prove that the damage was caused by something inherent to the cargo or an act of war. The air carrier may also limit its liability up to an amount of 19SDR per kg. However, so far not all countries have become a party to the Montreal Convention. Hence, in certain cases the Warsaw Convention (as amended) may still apply and the application thereof may result in an unlimited liability for cargo claims.
Marketing and advertising
Do any special rules apply to the marketing and advertising of aviation services?
There are no special rules in this regard. However, the Authority for Consumers and Markets has stressed that the presentation of the offer and the price should be complete and consistent. Further, any additional options, as well as the costs thereof, must be made clear at the start of the booking process.
Do any special rules apply to consumer complaints handling in the aviation industry?
Consumer protection legislation on aviation is mainly directed at the provider of air transport services (ie, air operators). The air operator must comply with consumer protection legislation such as EU Regulation 261/2004 and Article 23 of EU Regulation 1008/2008. The Authority for Consumers and Markets is appointed by law to enforce the relevant legislation and has the power to impose fines in case of non-compliance. There is no specific consumer protection legislation directed at the relationship between the airport operator and the passenger.
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