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Consumer protection and liability airfares
Are airfares regulated in your jurisdiction?
EU Regulation 1008/2008 obliges air carriers and travel agents to maintain a high-transparency standard in respect of airfares.
Further, it is outlined in the Unfair Practices Act as well as in the Regulation on the Indication of Prices that the price of a product or service must be indicated in a clear and transparent way.
Passenger rights are mainly governed by EU regulations, especially EU Regulation 261/2004 and the Montreal Convention, as well as EU Regulation 1107/2006.
What rules and liabilities are air carriers subject to in respect of:
(a)Flight delay and cancellations
EU Regulation 261/2004 and the Montreal Convention apply.
(b) Oversold flights
EU Regulation 261/2004 applies.
(c) Denied boarding
EU Regulation 261/2004 applies.
(d) Access for disabled passengers
EU Regulation 1107/2006 applies.
(e) Lost, damaged or destroyed luggage
The Montreal Convention applies.
(f) Retention and protection of passenger data
The Federal Data Protection Act is applicable, and applies to the protection of personal data of an individual, thus also passenger data. Personal data may be collected, saved and used only to fulfill a legal obligation or quasi-legal obligation with the data subject. Apart from this, the collection, saving and usage of personal data is allowed only if the data subject has expressly provided its unambiguous consent.
What rules and liabilities apply to the air carriage of cargo?
Germany is a party to:
the Amended Warsaw Convention (The Hague); and
the Montreal Convention.
Therefore, the provisions in these conventions apply to the air carriage of cargo.
For air transport within Germany, national rules apply (ie, the Commercial Code).
Basically, the carrier is strictly liable for damage, loss and delay to cargo but liability is limited to 19 special drawing rights (SDR) per kilogram (kg) under the Montreal Convention or 8.33SDRs under the Commercial Code.
Marketing and advertising
Do any special rules apply to the marketing and advertising of aviation services?
Under the Unfair Practices Act, amongst others, the following acts and approaches are considered unfair and illegal:
non-transparent, unclear descriptions of products and services;
incorrect and misleading descriptions of products and services;
incorrect indications of consumer rights;
disparaging the product, service, brand, name or business situation of a competitor; and
advertising via telephone, fax or electronic messages (eg, SMS, email) without the prior written consent of the consumer (opt in is mandatory). Email or other electronic advertisement is permissible only if:
the company has obtained the e-mail address directly from the consumer during the purchase of a similar product or service;
the advertisement concerns the same type of product or service;
the consumer has expressly consented to obtaining advertisements from the company regarding this type of product or service (opt-in is mandatory); and
the consumer is informed in every email how to withdraw consent to obtain advertisements from the company.
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