OPINION

The opinion was issued in the proceedings 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, among other things, that he initiated a procedure for protection against discrimination against the airline company Swiss International Airlines LTD before the High Court in Belgrade, which by ruling 6P. no. 1338/15 of June 12, 2017, determined 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 the flight on the Belgrade-Zurich route, 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 flight Belgrade-Zurich, which he made electronically the day before through his HON account. Furthermore, he stated that on April 14, 2019, he was unable to book a ticket for a flight with Swiss International Airlines on the route Belgrade-Zurich-London through the Lufthansa call center, with the explanation that his ticket must be issued 26 hours before departure, and that after that he managed to book the ticket only through the HON center of this company in London, “where such a rule did not apply”. The applicant further stated in the complaint that due to the introduction of the flight ban for 6 months, he initiated a procedure for protection against discrimination against Austrian Airlines AG before the State Court for Civil Procedures in Vienna, which by judgment 1 Cg 39/14h-148 of October 5, 2017, determined that the company discriminated against the complainant. The complaint further states that since the initiation of this court proceeding, the company Austrian Airlines AG has banned AA ground services, including ticket purchases, changing reservations, etc. at the counter of all three member companies of the Lufthansa Group at the airport “Nikola Tesla” in Belgrade, as well as that on this occasion he addressed the Lufthansa representative office, “which did not respond to his report”. He also stated that after the ruling in Vienna became final, Austrian Airlines AG “put” AA on an “internal watch list” to monitor his behavior and then asked employees to report his behavior during the flight to the company management. The applicant pointed out in the complaint that such “treatment” did not exist for other passengers and that he often received an apology from the crew for the letters “warning that he was on the flight”, as well as a “promise” that they would write a “positive letter, due to which he would not 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 situations mentioned above did not happen to him before the initiation of court proceedings for protection against discrimination. During the proceedings, statements were obtained from BB, VV and GG, which the complainant marked as witnesses, and who confirmed the allegations in the complaint by their statements. Based on their statutory powers and after analyzing the allegations of the complaint and the submitted evidence, the Commissioner proposed reconciliation to the complainant and the persons against whom the complaint was filed, in accordance with the law regulating the mediation procedure. Both parties accepted the Commissioner’s proposal, however, in the subsequent phase, the mediation procedure did not take place, which the mediators informed the Commissioner about. Bearing in mind the above, the proceedings before the Commissioner were continued and a statement was requested from the persons against whom the proceedings were initiated based on the complaint. In the statement of Swiss International Air Lines LTD, Austrian Airlines AG and Deutsche Lufthansa Aktiengesellschaft – Lufthansa, i.e. their representative offices in Belgrade, among other things, it was stated that the “Lufthansa Group” is a reputable multinational airline group consisting of the air carrier 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 a “HON”, i.e. “honorary” status, which represents the group of passengers with the largest number of flights and privileges. It was 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 precisely such passengers belong to the narrow circle of the most desirable clients who use their services the most”, and that, given that he flies almost every day, the complainant “is, from time to time, part of possible negligent mistakes that cannot be avoided in the airline industry”. The statement further specifies that “objective system or human errors, as well as objective impossibility to provide a certain service at a certain time have nothing to do with AA’s personal characteristics” and that “the interference by third parties and customers in the internal policies and operations of the Lufthansa Group, was not denied to AA because of his personal characteristics, but because of the Lufthansa Group’s business policy”. It was also stated that the company Austrian Airlines AG did introduce the so-called “watch list”, but that it “served solely so that the passenger who was banned from flying could not board a flight”, and that after the cancellation of the flight ban, the complainant was removed from “any kind of watch list”. It was further stated that “the alleged monitoring and recognition which the complainant interprets as discrimination does not represent any watch list”, but taking into account the fact that AA is a passenger with “HON” status, the employees, and above all the cabin crew, “are informed, within the 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 of the above was done in order to let Lufthansa Group employees know that they should “pay extra attention when AA is on the flight so that there would be no omission that could be interpreted as discrimination”. Regarding the allegation from the complaint that his HON status was “removed” from the flight on April 7, 2019, the statement specified that, according to the information of the customer relations service, a situation may occur that the HON passenger does not have a seat on the plane if the seat is reserved via the Internet, due to overbooking of the system or if the system does not show the client the possibility of reserving a seat, and that the problem can be solved by calling the aforementioned service, as well as that in this specific case “there was no intention to deny AA the HON status on the flight, but it was a mistake in system”, i.e. that the agent making the flight change “unintentionally failed to mark the HON status on the reservation of AA”. The Commissioner analyzed whether the companies against which the complaint was filed offered evidence based on which it is possible to conclude that the situations described in the complaint were caused by objective circumstances, that is, that they are not related to the fact that the complainant initiated proceedings before the competent courts and offered evidence of the discriminatory behavior 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 the specific 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, bearing in mind the volume of the case, as well as the rule on the redistribution of the burden of proof in proceedings for protection against discrimination, extended this deadline in order to properly determine the factual situation and make a legal and correct decision. Until the date of issue of this opinion, the mentioned evidence was not submitted to the Commissioner. Given that the complaint was submitted before the entry into force of the Law on Amendments and Supplements to the Law on Prohibition of Discrimination, the proceedings were concluded, in accordance with Article 28 of this law, following to the provisions of the Law on Prohibition of Discrimination (“Official Gazette of RS”, number 22/09) and general acts by which it was started. In the proceedings for protection against discrimination, the application of the rule on shifting the burden of proof is important. Namely, according to this rule, in this specific case, the complainant should make it probable that after the initiation of court proceedings for protection against discrimination, these companies unjustifiably treated him unequally, and that the less favorable treatment he was exposed to was directly related to the fact that he initiated proceedings before the competent courts and offered evidence on the discriminatory behavior of Swiss International Air Lines and Austrian Airlines. If the complainant makes an act of discrimination probable, the burden of proving that Article 9 of the Law on Prohibition of Discrimination was not violated as a result of that act is borne by 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 the prohibition of discrimination, the intention of the perpetrator of the discriminatory act is not legally relevant, i.e. discrimination can be carried out even without the existence of the intention and awareness that someone is being discriminated against. The Commissioner also notes that the complainant submitted evidence to support his allegations with the complaint, and he also suggested taking statements from three witnesses. After taking statements from the witnesses, the Commissioner determined that the complainant made it likely that an act of discrimination took place, that is, victimization as one of the forms of discrimination. In this regard, the burden of proof has been shifted to the persons against whom the complaint was filed. Based on the allegations of the complaint, statements, including statements of witnesses who directly attended the event and other submitted evidence, it can be concluded that the companies did not prove that they did not unjustifiably treat the complainant unequally exclusively, that is, mainly, because he offered evidence against the airline company Swiss International Air Lines and Austrian Airlines and sought legal protection against discrimination before the competent courts. Therefore, the Commissioner issued 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, namely: Swiss International Air Lines LTD for deleting the HON status from the complainant’s reservation during the flight on the Belgrade-Zurich route on April 7, 2019, i.e. preventing the enjoyment of privileges when booking a flight on the Belgrade-Zurich route on May 28, 2018; company Austrian Airlines LTD due to the introduction of the so-called “watch list”, i.e. internal monitoring list which was used to monitor the behavior of the complainant during the flight; the company Deutsche Lufthansa Aktiengesellschaft for not responding to the objections that the complainant made in writing, in which he pointed to the discriminatory behavior of the airlines Swiss International Air Lines LTD and Austrian Airlines LTD, as well as to enable the complainant to enjoy in the future the privileges enjoyed by HON members of the Lufthansa group, as well as to ensure that in the future they comply with the regulations on prohibition of discrimination within their regular jobs and activities.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković