The relaunch of air transport, the lack of post-pandemic offering and the preclusive effects on the rights of frequent flyers

By ASLA - Associazione degli Studi Legali Associati

di Maurizio Corain*, Chiara Santoboni* and Mario Barbera*

Rome - After the pandemic crisis that has also heavily affected the commercial aviation market, it is possible to imagine that, due to the vaccinations carried out on the population and, therefore, the consequent reduction in the spread of the COVID-19 virus, the considered choices applied by the various governments to allow for international travel again, for the greater possibility of moving around the territory and, therefore, for the increase in the desire and need to fly, the demand for airline tickets will begin to grow again. However, it is likely that the growth of this demand will not correspond, in the short to medium term, with an immediate increase in the supply of airspace, suitable for satisfying the increase in the former; this is because the carriers, in order to cope with the downturn suffered by the market during the pandemic period, have applied consequent reductive choices in their operational sphere as regards, for example, their own fleet and, possibly, also the assigned slots.

This, it is assumed, will certainly lead to an increase in ticketing costs, given the lower number of seats available on flights and a lower frequency of the flights themselves: on this point, there have already been interviews released by CEOs of the airlines who have announced such effect (for all, see the interview given by Michael O'Leary, Ryanair's chief executive officer to The Sunday Times of 12 September 2021 at -oleary-get-ready-for-prices-to-take-off-llkwp722r).

This increase in costs will also be justified by the need for airlines to take adequate measures to reduce pollution. The need to reconvert the fleet to the use of sustainable fuels will, in fact, be a further element that will affect the increase in ticket prices. In this regard, it is recalled that - at least before the pandemic - the aeronautical sector was one of the fastest growing sources of greenhouse gas emissions; the European Union has therefore taken steps to reduce emissions from aviation in Europe and collaborates with the international community to develop measures of global scope dedicated to this reduction, exactly as it has been proposed for the decarbonisation of the maritime transport sector. In fact, on July 14, 2021, the European Commission adopted a series of legislative proposals that define how it intends to achieve the so-called carbon neutrality (recte, the balance between residual emissions and the interventions for the disposal of carbon dioxide emissions into the atmosphere , with the intention of "zeroing" and "neutralizing" CO2 emissions, achieving a balance of CO2 emissions of less than or equal to zero) in the EU by 2050, including the interim target of a net reduction of at least 55% of greenhouse gas emissions by 2030. The package proposes to revise several pieces of EU climate legislation, including the EU ETS, the Effort Sharing Regulation, transport and land use legislation, defining in real terms the ways in which the Commission intends to achieve the EU's climate objectives under the European Green Deal (on this point, see among the many e-action / delivering_en). All this therefore passing through the need to introduce a series of measures aimed at facilitating both the production and the adoption of fuels from renewable sources for air transport which, however, on the other hand, will have a higher cost than those of derivation. fossil.

Therefore, due to the greater demand for flights compared to the offer, a potential increase in cases of overbooking can be hypothesized, resulting in a greater demand for application of the provisions of art. 4 Regulation (EC) no. 261/2004 which establishes common rules on compensation and assistance to passengers in the event of denied boarding, flight cancellation or prolonged delay.

Furthermore, this imbalance between flight supply and demand could also have repercussions on the exercise of the rights acquired by frequent flyers by reason of their participation in the loyalty programs of the various (essentially, almost all) airlines that have adopted them. To date, in fact, airlines have begun to apply corrective contractual measures (or rather, direct marketing) designed to reduce (or even eliminate) some of the effects deriving from the inability to fly related to the pandemic on their frequent flyers; in fact, the reduction in flights has seen an increasing number of air carriers postpone and the "expiration" of the specific status reached by the frequent flyer (for example, by some airlines the statuses expiring in 2020 and 2021 have been postponed to 2022), thus allowing the same the possibility to continue to benefit from the "higher favor "linked to belonging to this status, despite the fact that, due to the pandemic stop of the possibility of traveling, it was not possible for him to make the number of flights ordinarily necessary, provided for by the relative loyalty program, for the conservation of the same status .

But not only. The increase in demand, connected as mentioned above to an unequal increase in the offer of flights and, therefore, of seats on board them, can however also affect the possibility of redeeming the so-called flight award, with consequent liability for violation of the loyalty program by the carrier. This is in the event that the availability of seats is such as not to allow the frequent flyer - in an absolute sense - to obtain a ticket (through, essentially, a conversion of the price of the ticket itself for any available seat into loyalty points which, therefore, , in this way, they cannot be "spent), or even more in the event that, as some companies use to do in the execution of their loyalty programs, it is no longer possible or not easily possible for the frequent flyer have the opportunity to find available one of the seats reserved for this category of customers.

If this actually happens, there could be some liability on the air carrier for violation of the legislation applicable to the event (recte, in this case operation) at a premium, typification in which it must be included (within the jurisdiction Italian) the provision by the company itself (as the promoter) of its own loyalty program (on this point, reference is made to Presidential Decree No. 430 of 26 October 2001, containing rules on the organic revision of the discipline of competitions and prize operations, as well as local events, pursuant to article 19, paragraph 4, of law no. 449 of 27 December 1997). In this regard, it is sufficient to reflect on the fact that the failure left to the consumer to redeem the promised reward would produce a substantial violation of the promise to the public inherent in the loyalty program, formulated by the air carrier that promoted it (on this point, it is in fact obvious that the intent that moves the consumer to participate in the loyalty program of a specific company, therefore, to fly with the same, is to be able to receive an air ticket without having to pay the relative fee - or almost - and certainly not the only one to accumulate points and perhaps, with this, reach a particular status as mentioned above); this with the consequent possibility of the consumer to request, on an institutional basis, the enforcement of the guarantee presented by the carrier at the time of the opening of the loyalty program itself (on this point, see Cass. ord. 3 November 2020, n. 24428, according to which the provision of the deposit is aimed precisely at guaranteeing the effective payment of the promised goods and this effective payment can only be made with the payment of the deposit to the entitled person who is the winner of the prize competition).

But there is more. The "omissive" behavior put in place by the company could trigger a verification also by the Competition and Market Authority, which could consider this commercial practice as incorrect, as it is in contrast with the principle of professional diligence, false o capable of appreciably distorting the economic behavior of the average consumer who reaches or to whom it is directed. In essence, therefore, a misleading commercial practice, as it is capable of misleading the average consumer, falsifying their decision-making process (on this point, see articles 21-23 of the Consumer Code).

*RP Legal & Tax