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Maurizio Corain

Maurizio Corain

Si occupa in modo particolare di diritto della navigazione e dei trasporti e ha maturato una consolidata esperienza in tale ambito, offrendo consulenza nella redazione di contratti e nell’assistenza in controversie nei settori aereo, marittimo e terrestre.

Profilo: http://www.replegal.it/it/professionisti/tutti-i-soci/141-maurizio-corain.html

Italian Phase 2 for Aviation Sector

di Maurizio Corain e Mario Barbera

Following the several law provisions issued during the health emergency by the Italian Government (dedicated to the containment of the diffusion of Covid-19), the latter issued a DPCM (Prime Minister’s Decree) on May 17, 2020 in order to launch and regulate the so called Phase 2 of the Covid 19 health emergency period.

With such Decree the Government confirmed some of the former provisions set forth in order to contain the spread of the emergency on the Italian territory.

On these grounds and with specific regard to the aviation sector, under Article 4 gazetted as “Disposizioni in materia di ingresso in Italia” (Provisions on the entrance in Italy), it has been stated that those who intend to enter in Italian territory shall provide the carrier with a self-certification indicating:

  1. the reasons which justify the entrance in Italy (which, according to Law Decree No. 33/2020 shall be proven occupational needs, absolute urgency reasons or health reasons or in any case reasons allowed by the emergency regulations issued by the Government in the pandemic period);
  2. the details of the address where the relevant fiduciary isolation (14 days) will be spent and the details of the means of transport by which such address will be reached;
  3. the phone number at which receive communications by the relevant Health Authority relating to the fiduciary confinement.

According to Article 5 of the mentioned DPCM, such self-certification shall be provided even by those subjects who are planning a short stay for work requirements (i.e. a 72 hours stay in the Italian territory, save the case in which occurs a justified extension of further 48 hours). Such passengers shall provide, in addition to the above information, the details of their departure within the above time limit.

The carrier shall, not only receive such documentation but verify the latter before the boarding of the relevant passenger. The carrier shall therefore deny the boarding to those passengers who:

  • are experiencing a febrile state (by measuring the passengers’ temperature); and/or
  • do not provide the entire set of documents above indicated.

Please note that the above mentioned provisions on the carrier, do apply even to those passengers who only transit in the Italian territory in order to reach their final destination in a different State.

With regard to the management of the transportation, the carrier shall apply those provisions set forth by the Shared Ministry Protocol for the containing of the Covid 19 emergency (Annex 14 of the DPCM dated May 17, 2020). According to such Protocol the carrier shall (among other obligations):

  1. ration the sale of the tickets in order to keep the interpersonal distance of at least 1 meter for the duration of the transport;
  2. where physical distancing is more difficult to ensure, additional safeguards and measures leading to equivalent levels of protection should be put in place;
  3. sanitize and hygenize the aircrafts frequently (on the basis of the passengers traffic even several times a day);
  4. strengthening ventilation, hospital air filtering and vertical airflow;
  5. establish procedures to manage the boarding and disembarking of passengers that ensure that passengers will keep the interpersonal distance of at least 1 meter;
  6. provide that the crew limits the contact with passengers and, in any case, use protective masks and gloves;
  7. provide that the passengers use protective masks;
  8. limit the possibility for the passengers to move inside the aircraft to the essential needs;
  9. in long range flights, install disinfectant’s dispenser;
  10. establish procedures to manage crew members or passengers who should show a febrile state during transport.

Such measure may be found even in the package of guidelines and recommendations set forth by the EU Commission and issued on May 13, 2020, in order to “safely resume travel and reboot Europe's tourism in 2020 and beyond”. The EU Commission, indeed, aims to help Member States, while respecting necessary health precautions, to gradually lift travel restrictions and allow tourism businesses to reopen. With this purpose the EU Commission’s package includes:

  • an overall strategy;
  • a common approach to restore free movement in a coordinated way;
  • a framework to support the re-establishment of transport;
  • common criteria to safely restore tourism activities.

With this purposes and with specific attention to the air carriers, the Commission together with the competent authorities announced that it will put forward in the coming weeks technical operational guidelines “to facilitate a coordinated approach and assist national aviation authorities, airlines, airports and other aviation stakeholders”. Further to what already stated in the above mentioned national Law, such guidelines should include:

  • limiting contamination risks along the travel process (e.g. avoiding concentration of passengers, limiting interaction on board, exploring the most appropriate allocation of seats based on technical constraints, and prioritising electronic documents and means of payment);
  • reducing movement in the cabin (e.g. less cabin baggage, fewer interactions with the crew);
  • adequately managing passenger flows (e.g. advise on early arrival time at the airport; prioritising electronic/self-check-in; ensuring distancing and minimising contacts at baggage drop-offs, security and border control points, at boarding, and during baggage collection);
  • providing accessible information on airport processes to passengers in advance of travel.

Finally, please note that particular attention has been paid to the potential cancellation of the journey by the operators (among which the air carriers). Indeed, the EU Commission recommended that those who operate in the aviation sector shall “make travel vouchers an attractive alternative to cash reimbursement” by:

  1. making them redeemable at the latest 12 months after they have been issued;
  2. ensuring that such vouchers can be used for travel on same route and under same conditions;
  3. ensuring they can be used for new bookings and make them transferable to another person without any additional cost.

Moreover, the UE Commission recommended that the vouchers should be protected (e.g. by the relevant State Member) against the insolvency of the transport company at the outcome of the 12 months period.

With this regard please note that under the provisions set forth by the Italian Government, operators are allowed to issue vouchers, obviously of the same amount of the price paid by the customers, but Italian provisions do not provide that such vouchers shall be redeemable at the end of their validity period.

This, as per the formal letter dated May 15, 2020 by the EU Commissioners for Justice and for Transport (Didier Reynders e Adina Valean), may cause that Italy (together with several other EU Member States which set forth similar provisions) will be subject to an infringement proceeding in case of failure in complying with the European provisions which ensure the customer choice between a voucher and the refund of the price paid.

Emergenza Covid-19: impossibilità sopravvenuta e rimborso del prezzo del biglietto

di Maurizio Corain e Mario Barbera

Con l’articolo 88bis della Legge n. 27/2020 del 24 aprile 2020 di conversione del D.L. n. 18/2020, il legislatore ha confermato quanto già anticipato anche con il D.L. n. 9/2020. È stata infatti istituita una tutela unica per i fornitori di pacchetti turistici, per le strutture ricettive, per i vettori aerei, marittimi e ferroviari e, ovviamente, per i consumatori di tali servizi.

Il legislatore difatti ha ribadito che, lo stato emergenziale e di generale chiusura connesso alla necessità di contenere la diffusione del virus Covid-19 costituisce “una sopravvenuta impossibilità della prestazione dovuta in relazione ai contratti di trasporto aereo, ferroviario, marittimo, nelle acque interne o terrestre, ai contratti di soggiorno e ai contratti di pacchetto turistico” stipulati da un elenco di categorie di soggetti indicate nel testo dell’articolo.

European Court of Justice, flightright vs Iberia case

The judgement concerns the interpretation of Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Section 2 of Chapter II of Regulation No 1215/2012, entitled “Special jurisdiction”, contains Article 7(1) thereof, which provides:

A person domiciled in a Member State may be sued in another Member State:

  1. in matters relating to a contract, in the courts for the place of performance of the obligation in question;
  2. for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

    — in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

    — in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

  3. if point (b) does not apply then point (a) applies.”

The disputes filed by flightright GmbH vs Iberia LAE SA Operadora Unipersonal concern a journey with three connecting flights under a confirmed single booking for two passengers: the first leg (from Hamburg to London) operated by British Airways, the subsequent two legs (from London to Madrid and from Madrid to San Sebastián) operated by Iberia.

ECTAA files antitrust complaint against IATA

ECTAA - European Travel Agents’ and Tour Operators’ Association recently filed a complaint against the IATA before the European Commission.

 Such complaint is based on the breach of Articles 101 and 102 of the EU Treaty, ECTAA alleged.

 “Airlines have entered into direct competition with travel agents on the distribution of air tickets while the classical commission-based remuneration schemes have been abandoned”, ECTAA said.

 The IATA PAP - Passenger Agency Programme is still entirely construed around a traditional “mandate scheme” (the so called “IATA PSAA – Passenger Sales Agency Agreement”), under which the remuneration of the travel agent is calculated on the ticket selling volume, where the percentage of such calculation is often close to the “zero percentage philosophy”: this is the negative sense of such programme and its assumed current inadequacy, ECTAA argued.

 On the basis of the above said, ECTAA denounced the current policy applicable to air ticket distribution, which rules are unilaterally decided, “as a dominant system that restricts competition… (due to the) abuse of IATA’s dominant position” in such sector.

LINK

Rinuncia all’azione e poteri del difensore, conferma dell’orientamento dei giudici della legittimità

La rinuncia all'azione, ovvero all'intera pretesa azionata dall'attore nei confronti del convenuto, costituisce un atto di disposizione del diritto in contesa e richiede, in capo al difensore, un mandato "ad hoc", senza che sia a tal fine sufficiente quello "ad litem", in ciò differenziandosi dalla rinuncia ad una parte dell'originaria domanda, che rientra fra i poteri del difensore quale espressione della facoltà di modificare le domande e le conclusioni precedentemente formulate.

The 22nd ratification, recently filed by Turkey, will make the Beijing Convention 2010 on the Suppression of Unlawful Acts Relating to International Civil Aviation into force on 1 July 2018

Pursuant to its recent ratification by the Government of Turkey, ICAO has announced that the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, done in Beijing on 10 September 2010, will enter into force on 1 July.

Art. 7ter DLgs 286/2005 – una decisione mancata

Con l’ordinanza n. 37 del 2018, la Corte ha dichiarato l’inammissibilità della questione di legittimità costituzionale dell’art. 1-bis, comma 2, lettera e), del decreto-legge 6 luglio 2010, n. 103 (Disposizioni urgenti per assicurare la regolarità del servizio pubblico di trasporto marittimo ed il sostegno della produttività nel settore dei trasporti), convertito in legge 4 agosto 2010, n. 127, nella parte in cui inserisce l’art. 7ter nel DLgs 21 novembre 2005, n. 286 (Disposizioni per il riassetto normativo in materia di liberalizzazione regolata dell’esercizio dell’attività di autotrasportatore), sollevata dal Tribunale ordinario di Grosseto.

Aircraft Noise Emission Tax: Piemonte Region Decision

On January 1st 2018, it will entered into force the aircraft noise emission tax (IRESA) as provided for by Article 10 of Regional Law 14 April 2017, n. 6 approved by Piemonte Regional Council.  Caselle Airport does not agree and it retorts affirming that, in this way, Turin airport becomes less competitive than neighboring airports such as Milano Malpensa.  Actually, the above is not a peculiarity of Piemonte Region: the law should be enforce nationwide, but the competence is in charge of the single Region on the basis of a template. The fact is that mainly this law is not applied: the solely Region that provides for by such tax are Lazio, Campania, Emilia Romagna, Calabria and Marche, and, now, Piemonte. According to the calculations, the enforcement of the IRESA will increase the airport cost in Piemonte Region about 24% for every take-off and landing (Paragraph 5 of the above said Article 10 Regional Law 6/2017).

Link alla fonte  

Italian Antitrust Authority, Ryanair case:

Flight cancellations, Italian Antitrust Authority opens an investigation on Ryanair for alleged unfair commercial practices.

Italian Antitrust Authority has opened an investigation on Ryanair for alleged unfair commercial practices violating the Consumer Code. According to the Authority, the numerous flight cancellations that have already occurred or that will take place in the coming weeks, as reported in the press, could constitute a breach of the duty of diligence set out in art. 20 of the Consumer Code, to the extent that they have been caused by foreseeable organizational and management problems, and not by random and exogenous circumstances outside of Ryanair’s control, ultimately leading to substantial inconvenience to consumers who had long planned their traveling schedules and thus booked and paid for their plane tickets.

In addition, the Antitrust Authority will also investigate the way in which Ryanair has informed passengers of the cancellation of their flight and suggested them the alternative solutions (reimbursement or change of the ticket), since consumers might have been misled about the existence, and therefore the exercise, of their right to financial compensation granted by Regulation EC 261/04 precisely in the event of flight cancellations.

The procedure opened by the Authority has the number PS10972.

Link alla fonte

European Court of Justice, Ryanair case: the revenge of fair competition?

Ryanair employment contracts examined by the Court are drafted in English, subject to Irish law, with a jurisdiction clause providing that the Irish courts have jurisdiction. In those contracts, it was stipulated that the work of the employees concerned, as cabin crew, was regarded as being carried out in Ireland given that their duties are performed on board aircraft registered in that Member State. Those contracts nevertheless designate the Belgian Charleroi airport as the employees’ ‘home base’. Those employees start and end their working day at that airport, and they are contractually obliged to reside within an hour of their ‘home base’.

In that context, ECJ considers that, in disputes relating to their employment contracts, air crew members have the option of bringing proceedings before the courts of the place where they perform the essential part of their duties vis-à-vis their employer. Consequently, the national courts must determine that place in the light of all the relevant circumstances, an employee’s ‘home base’ being a significant indicator to that effect.

The Court states that a jurisdiction clause, concluded before the disputes arose, and seeking to prevent employees from bringing proceedings before courts which do however have jurisdiction under EU legislation in this field, is not enforceable against those employees.

The above said has been decided in joined Cases C-168/16 and C-169/16 on 14 September 2017.

Link alla fonte

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