The European Court of Justice has found that valid complaints about damaged luggage, which the Montreal Convention says should be “in writing”, can include transcribed phone calls to airline customer service agents.

The ruling, issued on 12 April, came in response to a referral by the Finnish Supreme Court, which is hearing a dispute between the country’s flag carrier Finnair and an insurance company seeking repayment for compensation it paid out to a passenger who noticed items had gone missing from her luggage on a flight between Malaga and Helsinki 2010.

The passenger lodged a complaint with Finnair over the phone on the same day and received a certificate of the lodging of a declaration of loss, which she sent to her insurance company Keskinäinen Vakuutusyhtiö Fennia.

Fennia indemnified the passenger and brought a claim against Finnair in the Helsinki District Court for repayment. The airline, however, said the action was inadmissible as the passenger’s complaint hadn’t complied with the requirements of article 31 of the Montreal Convention, which says baggage claims must be lodged in writing within seven days of receipt of the items in question.

After the District Court sided with Finnair, Fennia challenged the decision in the Helsinki Court of Appeal, which found that the guidelines for lodging a complaint on the airline’s website offered passengers the option of filling in an automated form or speaking to a representative over the phone and that they were “not sufficiently clear and unambiguous for a passenger as a consumer”. A passenger could legitimately believe that a complaint made over the phone and logged by a representative of the airline qualified as a written complaint under article 31, the court said, and reversed the District Court decision in 2014.

When Finnair brought a further appeal against the set-aside, the Helsinki Supreme Court stayed the action and asked the ECJ to rule on whether the article 31 “in writing” requirement was satisfied by the case.

The court said that the preamble to the convention, which says emphasises the importance of protecting passenger interests, should mitigate against “excessively limiting the specific way in which a passenger may choose to complain, provided that that passenger remains identifiable as the person who made the complaint.”

With this in mind, the court said the term “in writing” should be allowed to encompass handwritten or typed notes on paper as well as information logged electronically, as was the case with the passenger’s complaint to Finnair.

The court further found that there was nothing in the text of the convention that required passengers to write their complaints themselves and said that it would run counter to the principle of protecting consumer interests not to allow passengers to have their issues logged by other persons if necessary.

Such “other persons” could include representatives of the airline being complained against, despite the “conflicting” interests of the two parties, as long as the passenger is able to check and amend the airline’s written version of their complaint, the court said.

It concluded that the convention imposed no further substantive requirements on complainants other than timely giving notice to the carrier of the damage sustained. The ECJ made no order on costs, noting that the issues presented in the proceedings were just one step in a larger case before a national court. 

In the European Court of Justice

Finnair Oyj v Keskinäinen Vakuutusyhtiö Fennia

  • Lars Bay Larsen (president)
  • Jiří Malenovský (rapporteur)
  • Marek Safjan
  • Daniel Šváby
  • Michail Vilaras

Counsel to Finnair

  • Mentula & Väätäinen Attorneys

Tapio Väätäinen

Keskinäinen Vakuutusyhtiö Fennia

  • Asianajotoimisto Teiramaa Oy

Vesa Teiramaa