Order No. C-756/18, CJEU, of October 24, 2019 on boarding passes: The dangerous reversal of the burden of proof

The Court of Justice of the European Union has issued a Supranational Order stating that it is not necessary to present boarding passes to prove the status of a passenger, since it is the airline that must prove that it was the passenger who did not go through check-in to deny their claim. The resolution was coming. And it is true that, in their defense against judicial claims, the airlines sometimes claimed that the passenger did not have active legitimacy in the process because they only proved that they had contracted the air transport service (they provided confirmation of the reservation, usually a screenshot of it), but not the status of a passenger on the specific flight that suffered the delay and for which they legally claim compensation and/or financial compensation from the defendant airline. This was only possible to prove if the valid document for this purpose was provided in the claim, which only corresponds to the boarding pass. Thus, and regardless of whether the passenger was right or not, many judgments dismissed claims for flight delays based solely on the passenger's absence of documentary evidence, which, on the other hand, should not be a reason to lay their hands on their heads, since the burden of proof of claiming something has always fallen on the person who claims it. It is, in short, an application of Civil Law, and not exactly “Justice”, as the ordinary citizen understands it. But that is what there is and, as we say, it is nothing new. Nor is the pro-consumer principle new, the Latin one typical of jurists and which is translated into “Castilian” in the old saying that “the customer is always right” or, more specifically, that there is no equality of documentary weapons of judicial defense between users and service providers, which requires the imposition of an “investment of the burden of proof” for the provider company, which has to prove that it is not responsible for the non-provision or defective provision of a service because, among other things, it has greater ease of access to the documents accrediting the provision itself and its full execution, from the time of booking until the end of the trip, in the case of tourist and/or transport services. In this way, then, it seems that, this time, “Justice” is beginning to be done, and not so much direct application of Civil Law. But be careful, because perhaps the European Union is going overboard with regard to the burden of proof for the user and the narrowing of defense possibilities on the part of the airline and, consequently, there is a certain risk of undermining the rights to Effective Judicial Protection for the airline. And we say this because, we understand, that the European Court has not considered in its fair measure the ease of proof that the parties have in a judicial air claim process; not at least in Spain. So, here the debate or “the million dollar question” really focuses on the following: Who has the easiest way to prove that they have taken a seat on a flight, the traveler or the airline? The question is too generic and, like everything in law, requires nuances. Because it is obvious that airlines have documents such as the “PNR”, the passenger list and other internal data entry processes that, safeguarded by security filters and protocols, allow an airline to know in real time if someone has flown or not, all if required by, for example, security and counter-terrorism forces. And we qualify the latter because this capacity for “knowledge” and ease of documentary printing or sending screenshots is accepted by police or air security channels, but they are not evidence that is easily admissible in a court of law, since they are codified documents that are illegible and interpretable by a layman in the technical field of the reservation, normally subject to reading through specific software, which is perfectly admissible as evidence for the authority making the consultation, because it is familiar with the language and processes used by airlines to compress the millions of data they store in a fraction of a second. But not for a Judge. These documents are not proof of anything at all, not only because their entirety is encoded, but because what is not encoded is in English and, what is worse, even if the airline has the time and bears the cost of decoding the documents and translating their results into Spanish to present them to the court, it will find Judgments such as that of the Provincial Court of A Coruña of January 19, 2012, which has already emphasized what was already established in this regard that “the provision of internal documentation is not enough for this purpose, being unilaterally created.” There are also Judges who have considered that an expert test should be carried out by third-party experts outside the airline to certify that the internal documentation collected by the airline itself regarding the service provided was true, but this is in fact an imposition on the airline of a better solution in accepting the facts, even if they are false, since the cost of defending the truth is greater than what is being claimed. And if there were no users and complaint companies that knew that fact and took advantage of it to complain about legal fraud, then nothing would happen; but there are cases of fraud. The airline's position in terms of evidentiary ease is more or less clear. Now let's see what the passenger's one looks like. Because, on the other hand, passengers know perfectly well that they have flown and always have their boarding pass, which is not supposed to be thrown away in the bin (physical or electronic recycling, as the case may be) if the flight has caused them a nuisance, moral harm or if, simply, it has been delayed for more than three hours and the document in question itself becomes an automatic compensation voucher of between 250 and 600 euros. In other words, both parties (passenger and airline) have the capacity to know the facts and have access or accredited facilities obvious as to the fact of having flown (the passenger) or not having flown (the airline), but that the evidentiary facility in the judicial phase is understood as coming from the airline is more than debatable and that, however, the analyzed Car ends up overwhelming in favor of the consumer, which is desirable for all of us because we are all consumers, but which can dangerously undermine the equality of judicial weapons in these specific cases of air claims, since the margin of 10 days left to document the defense and drafting it before the court is never enough to initiate an evidentiary process or protocol and to hire third parties (lawyers, translators, experts...) which, in addition, is more expensive than the claim itself.

Fernando de Llano (T&L Attorney)