no. 07-00-222 / 2019-02 date: 18.6.2021.

OPINION

The opinion was issued in the procedure regarding the complaint filed by AA against the airline companies Swiss International Air Lines LTD, Austrian Airlines AG and Deutsche Lufthansa Aktiengesellschaft, all three members of the “Lufthansa Group”, due to victimization. In the complaint, the applicant stated, inter alia, that he had initiated proceedings against the airline company Swiss International Airlines LTD for protection against discrimination before the High Court in Belgrade, which in ruling 6P. no. 1338/15 of 12 June 2017 found that this company discriminated against the complainant. He further stated that from the moment the court proceedings were initiated, he was exposed to “numerous inconveniences” when using the services of this airline. In support of his allegations, he pointed out that although he has the status of HON passenger (“honorable”), on May 28, 2018, during a flight on the Belgrade-Zurich flight, he could not reserve a seat on the plane, and that on April 7, 2019, his HON status was deleted from the reservation on the Belgrade-Zurich flight, which he had made the day before, electronically, via his HON account. He further stated that on April 14, 2019, he was unable to book a ticket for a flight with Swiss International Airlines via the Lufthansa call center, for a flight from Belgrade to Zurich-London, with the explanation that his ticket must be issued 26 hours before departure, as well as that after that, he managed to book a ticket only through the HON center of this company in London, “where such a rule did not apply.” In the complaint, the applicant further stated that due to the introduction of a 6-month flight ban, he initiated anti-discrimination proceedings against Austrian Airlines AG before the Vienna Regional Court of Civil Procedure, which by ruling 1 Cg 39/14h-148 of October 5, 2017, found that the company had discriminated against the complainant. The complaint further states that since the initiation of this lawsuit, Austrian Airlines AG has banned AA terrestrial services, including buying tickets, changing reservations, etc. at the counter of all three Lufthansa Group member companies at Belgrade’s Nikola Tesla Airport, as well as that on that occasion he addressed the Lufthansa representative office, “which did not react to his report”. He also stated that after the verdict in Vienna became final, Austrian Airlines AG “placed” AA on the “internal monitoring list” in order to monitor his behavior, and then asked employees to inform company management about his behavior during the flight. In the complaint, the complainant pointed out that such “treatment” did not exist for other passengers and that he often received an apology from the crew for letters “warning that he was on a flight”, as well as a “promise” to write a “positive letter so he wouldn’t have problems for further flights”. He also pointed out that he has been using the services of Lufthansa for over 20 years and that the above-mentioned situations did not happen to him before the initiation of court proceedings for protection against discrimination. During the proceedings, statements of BB, VV and GG were obtained, which the applicant identified as witnesses in the complaint, and which confirmed the allegations of the complaint in their statements. Starting from their statutory powers and after analyzing the allegations of the complaint and the submitted evidence, the Commissioner proposed conciliation to the complainant and the persons against whom the complaint was filed, in accordance with the law governing the mediation procedure. Both sides accepted the Commissioner’s proposal, however, at a further stage no mediation procedure took place, which the mediators informed the Commissioner about. Having in mind the above, the procedure before the Commissioner continued and a statement was requested from the persons against whom the procedure on the complaint was initiated. The statement of Swiss International Air Lines LTD, Austrian Airlines AG and Deutsche Lufthansa Aktiengesellschaft – Lufthansa, that is, their representative offices in Belgrade, stated, among other things, that the “Lufthansa Group” is a reputable multinational group of airlines consisting of Swiss International Air Lines LTD, Austrian Airlines AG and Deutsche Lufthansa Aktiengesellschaft, that AA is a regular passenger and user of Lufthansa Group services and that “as such” has acquired the “HON”, i.e. “honorary” status representing the group of passengers with the largest number of flights and benefits. It is further stated that “such a large company” has no motive to treat a passenger with “HON” status in a discriminatory manner, “nor to expose him to any kind of inconvenience, because such passengers are among the most desirable clients who use their services the most”, and that, given that he flies almost daily, the complainant is “from time to time part of possible negligent errors which cannot be avoided in the air transport industry”. The statement further states that “objective systemic or human errors, as well as objective inability to provide a particular service at any given time have nothing to do with AA’s personal characteristics” and that “not allowing third parties and clients to interfere in Lufthansa Group’s internal policies and operations is not denied to AA because of his personal qualities, but because of the business policy of the Lufthansa Group”. It is also stated that the company Austrian Airlines AG has introduced the so-called “watch list”, but that it “served exclusively to prevent a passenger who was banned from flying to enter the flight”, as well as that after the lifting of the ban on flying, the complainant was removed from the “watch list”. It is further stated that “the alleged monitoring and identification, which the complainant interprets as discrimination, does not represent any watch list”, but having in mind the fact that AA is a passenger with “HON” status, employees, and above all cabin crew, “are informed within regular procedures that such a passenger will be on the flight, in order to provide him with the highest possible level of service”, and that all this was done to inform Lufthansa Group employees to “pay additional attention when AA is on a flight so that there would be no omission that could be interpreted as discrimination.” Regarding the allegations from the complaint that his HON status was “removed” from the flight of April 7, 2019, the statement said that, according to information from the customer service, a situation may occur that a HON passenger does not have a seat on the plane if a seat is reserved over the Internet, due to overbooking of the system or if the system does not offer the client the possibility of reserving a seat, and that the problem can be solved by calling the mentioned service, and that in this case “there was no intention to deny AA his HON status on the flight, but that it was an error in the system”, that is, that the agent who changed the flight “unintentionally failed to indicate the HON status on AA’s reservation”. The Commissioner analyzed whether the companies against which the complaint was filed offered evidence on the basis of which it can be concluded that the situations described in the complaint were caused by objective circumstances, that is, that they were not related to the fact that the complainant initiated proceedings and offered evidence before the competent courts for discriminatory treatment of Swiss International Air Lines LTD and Austrian Airlines AG. At the request of the companies, the Commissioner gave these persons an additional period of 30 days to submit evidence to prove that in this particular case there was no violation of the principle of equality, that is, the principle of equal rights and obligations. Although this is not a common procedure, the Commissioner, having in mind the scope of the case, as well as the rule on distribution of the burden of proof in anti-discrimination proceedings, extended this deadline in order to properly establish the facts and make a legal and correct decision. Until the day of issuing this opinion, the mentioned evidence has not been submitted to the Commissioner. Considering that the complaints were submitted before the entry into force of the Law on Amendments to the Law on Prohibition of Discrimination, the procedure was completed in accordance with Article 28 of the Law on Prohibition of Discrimination (Official Gazette of RS, No. 22/09) and general acts according to which it was initiated. In anti-discrimination proceedings, it is important to apply the rules on distribution of the burden of proof. Namely, according to this rule, in this particular case, the complainant should make it probable that after initiating court proceedings for protection against discrimination, these companies unjustifiably treated him unequally, and that the less favorable treatment he was subjected to was directly related to the fact that he initiated proceedings before the competent courts and offered evidence of discriminatory treatment by Swiss International Air Lines and Austrian Airlines. If the complainant makes an act of discrimination probable, the burden of proving that the act did not violate Article 9 of the Law on Prohibition of Discrimination rests on the airlines against which the complaint was filed. The Commissioner further states that it is important to point out that when examining whether a certain act is contrary to the imperative regulations on prohibition of discrimination, the intention of the perpetrator of the discriminatory act is not legally relevant, that is, discrimination can be committed without intent and awareness to discriminate. The Commissioner also states that the complainant submitted evidence in support of his allegations, along with the complaint, and suggested taking the statements of three witnesses. After taking statements from witnesses, the Commissioner states that the complainant made it probable that there was an act of discrimination, that is, victimization as one of the forms of discrimination. In this regard, the burden of proof was shifted to the persons against whom the complaint was filed. Based on the allegations in the complaint, statements, testimonials of witnesses who were present at the event and other submitted evidence, it can be stated that the companies did not prove that they did not unjustifiably treat the complainant solely, that is, mainly, because he offered evidence against airline companies Swiss International Air Lines and Austrian Airlines and sought legal protection against discrimination before the competent courts. Therefore, the Commissioner gave the opinion that Swiss International Air Lines LTD, Austrian Airlines AG and Deutsche Lufthansa Aktiengesellschaft violated the provisions of Article 9 of the Law on Prohibition of Discrimination. These legal entities were recommended to send a written apology to the complainant through their representative offices in Belgrade as follows: Swiss International Air Lines LTD for deleting the HON status from the complainant’s reservation on the occasion of flight from Belgrade to Zurich on April 7, 2019, that is, for disabling his privileges when booking the flight Belgrade-Zurich on May 28, 2018; Austrian Airlines LTD for introducing the so-called “watch list”, that is, internal monitoring list that was used to monitor the complainant’s behavior during the flight; Deutsche Lufthansa Aktiengesellschaft for failing to respond in writing to the complainant’s allegations of discriminatory treatment by Swiss International Air Lines LTD and Austrian Airlines LTD, and to allow the complainant to enjoy the privileges of Lufthansa Group’s HON members in the future, as well as to take care in the future to adhere to the regulations on the prohibition of discrimination in their regular work and activities.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković