The judgment of the Regional Court of Barcelona dated October 5th 2011 dealing with the appeal of a lawsuit filed by a passenger against “Ryanair Limited”, which is based on the imposition of a fine of 40 euros due to the fact that the user did not carry the printed boarding pass and did not hand it in at the counter.

The claimant seeks the reimbursement of the fine and request that the clause included as general condition of the agreement is declared null pursuant to the legislation governing the protection of consumers and users. The claimant considers the clause is unfair and contrary to Article 3 of the Convention of Montreal on the airlines liabilities, stating that the airline is obliged to issue the boarding pass to its clients.

The Court of First Instance dealt with the claim and considered that this causes an imbalance between the benefits, it limits consumer’s rights and determines a lack of reciprocity so that the airline alters its basic contractual obligations, causing a negative impact in the passenger and charging a penalty for an obligation that the company should be responsible for.

Ryanair appealed to the Court, and the considerations from Court were the followings: Firstly, the Court states its disagreement in regards to the compliance with Article 3 of the Convention of Montreal, given that in this case, the company does provide the traveler with their boarding pass, the only difference rises in the “modus operandi”, since it is not delivered at the counter as it is in the traditional way. The boarding pass is available to the passenger two weeks before the flight takes place and it is stored on the Ryanair website with specific instructions for the user who can easily print it out and bring it to the airport displaying it at the gate. According to the Court, this system is not contrary to the legal dispositions established in the Convention of Montreal, furthermore, it speed up the shipping process, it involves cost savings for the company and also time for the passenger and therefore, it shall not be considered as detrimental for the user in any way.

Secondly, in regards to the annulment of the clause for being considered unfair and contrary to the legislation that protects consumers and users, the Court does not consider that the obligation to print the card, which is sufficiently warned in advance, would be contrary to Section 82 of Royal Decree (RDL as per its Spanish acronyms) 1/2007, which specifies the figure of unfair and abusive terms. The Court states that the fact of printing out the boarding pass does not causes a disproportionate burden, does not involve a significant imbalance in benefits neither causes an unreasonable limit to their rights pursuant to Section 82 of the Royal Decree 1/2007.

Furthermore, the Court considers that the penalty clause of 40 Euros assumed by the passenger in the event of default is not excessive or disproportionate. It could be considered excessive or disproportionate if, for instance, the passenger were denied to board.

Thus, according to the Court it shall be considered as a disposition pursuant to the Freedom to Contract included in Section 1255 of the Spanish Civil Code, and the passenger is sufficiently informed about the conditions whose implementation can be avoided by easy steps on the website of Ryanair.

Therefore, the Court upheld the appeal brought by Ryanair and revokes part of the judgment issued in first instance, which claims the declaration of the contract clause as null and void.

However, one of the judges, Mr. Juan F. Garnica Martín, issued a dissenting opinion as he considers that the appeal should not be upheld, alleging that the clause shall be considered abusive and unfair. He states that there is an alteration of the system of obligations established under the positive law which usually weighs on the company, forcing the passengers to use certain devices to print out the boarding pass. Furthermore, the unfairness of the disposition still remains even if the passenger knows in advance the conditions upon the agreement and even if these conditions are accepted. It would not be considered unfair and abusive if it had been individually negotiated (Section. 82-1 of the Revised Text of the General Law for the Protection of Consumers and Users), which does not occur in this case.