A blatantly illegal sanction

It considers that this constitutes an abusive clause classified as an infringement of Article 47.1.j) of the TRLGDCU.
 

The sanctioning decision considers it proven that ‘Airbus A320 model aircraft [...] have a maximum capacity of 180 passengers and a limited storage capacity in the overhead compartments. In fact, the standard configuration of these aircraft allows for the storage of around 80 to 85 cabin bags in the overhead compartments, weighing a maximum of 10 kg and measuring 55x40x20 cm.
 

Therefore, if the number of cabin bags exceeds the capacity available in the overhead compartments, [the airline] is obliged to check in the remaining pieces of luggage and store them in the hold of the aircraft, which, according to the information provided, can cause delays and has been the main reason for the implementation of the cabin baggage policy’.
 

This policy consists of transporting free of charge in the cabin, under the seat in front of the aircraft, baggage whose dimensions range between 40x20x30 and 35X20X20 cm, and transporting in the overhead compartments, for an additional fee, baggage of larger dimensions.
 

From a purely legal point of view, the decision to impose a fine is open to serious criticism.
 

Firstly, it is surprising, not only the harshness of the penalty, but simply its imposition, when the decision itself acknowledges that ‘there are no Supreme Court proceedings on the abusive nature of charging extra for hand luggage [...] there are only judgments of single-judge courts whose rulings do not follow a single line of case law’. In other words, it penalises behaviour that is based on a reasonable interpretation of the rule by the airlines, which coincides with that of a large part of the lesser case law, and which to date has not been corrected - nor confirmed - by the Supreme Court.
 

Secondly, the decision makes a deviant interpretation of the Judgment of the Court of Justice of the European Union (Fifth Chamber) of 18 September 2014 (Vueling Case), and of the report of the Advocate General which - as amicus fori- preceded it.
 

Contrary to what is maintained in the decision imposing the penalty, the Court did not accept the Advocate General's opinion against ‘accepting the principle, even in futurum, of payment for cabin baggage’. The Advocate General based his argument on the fact that ‘being able to carry with one's person and in one's personal custody the objects considered most valuable or indispensable is linked to the dignity of the individual’.
 

We agree with this consideration, but not with the effect that the Advocate General intends to derive from it. Personal effects', i.e. those considered to be “more valuable or indispensable”, are one thing, linked to human dignity, and unchecked baggage travelling in the cabin is a different and broader matter.
 

This is where the CJEU agrees when it states, security requirements aside, that hand luggage must be considered, ‘in principle’, i.e. not in all cases, ‘an indispensable element of the carriage of passengers and [...] its carriage cannot therefore be subject to a price supplement, provided that such luggage meets reasonable requirements as to its weight and dimensions’. This implies, a sensu contrario, that a charge may be made for cabin baggage of a certain weight and dimensions.
 

Thirdly, the decision imposing the penalty seeks to impose on all passengers the unsolicited service of transporting cabin baggage. This violates Article 89.4 TRLGDCU. The payment of this service would obviously be charged to all passengers on the basic ticket. This includes those who travel with only one piece of luggage under the front seat, or only with this and checked baggage in the hold.
 

This is a compulsory free service which, moreover, cannot be provided to all passengers, as there is only room in the overhead compartments for slightly less than half of the passengers.
 

The European Commissioner for Transport has recognised, if not promoted, the policy of unbundling services, so that each passenger pays for what he or she actually uses. This policy is in line with that of the Community legislator that ‘pricing systems should not explicitly imply that certain categories of customers bear the costs of interventions affecting other categories of customers’ (Directive 2019/944).
 

Certainly the sanction constitutes a disservice to the passenger rights that the Ministry claims to defend.

Access to the article published in the newspaper Expansión