Existence of a Duty to Inform of the Right to Vote
- The normative framework for examining the existence of the obligation to inform a passenger that his flight has been cancelled is set out in section 6 of the Aviation Services Law, which reads as follows:
"6. (a) A passenger who has been issued a flight ticket for a cancelled flight shall be entitled to receive from the flight operator or the organizer the following benefits:
(1) Assistance services;
(2) Refund of consideration or an alternative flight ticket, at the passenger's choice;
(3) Financial compensation as stated in the First Addendum.
(b) A flight operator or an organizer who has offered the passenger an alternative flight ticket as stated in subsection (a)(2), and the passenger has received such an offer, may reduce by half the amount of financial compensation to which the passenger is entitled under the provisions of subsection (a)(3), provided that the delay in the time of landing at the passenger's final destination compared tothe original date of landing at that destination is as detailed below (emphasis added - A.S.).
- From the language of section 6(b) of the law - "A flight operator or organizer who has offered a passenger an alternative flight ticket [...] and the passenger accepted this offer" - a clear conclusion emerges in my opinion that there is an obligation tooffer the passenger a choice. In other words, the clear intention of the law is that in order to fulfill the obligation to provide the benefit set out in section 6(a)(2) of the Law, the organizer and the flight operator must first offer the passenger a choice between the alternatives and receive one of them.
- An interpretation according to which the passenger must demand on his own initiative the choice granted to him renders the language of the law, which uses the words "offer" (on the part of the organizer and the flight operator) and "acceptance" (on the part of the passenger) in relation to the alternatives to which the passenger is entitled. This interpretation also contradicts logic: a passenger who does not demand what he is entitled to according to the law is obviously not getting what he deserves and does not claim his rights. Such a result harms the consumer interest and benefits the airline at the expense of the passengers.
- The linguistic interpretation - which imposes an active duty on the airline to offer the passenger a choice between refund and an alternative flight ticket - is strengthened in view of the consumer purpose on which the Aviation Services Law is based. A person from the locality who requires flight services does not keep his bill of rights as a passenger in his pocket. It is plain, therefore, that in order to enable the passenger to exercise his right to choose, it is necessary to ensure that he knows what his rights are and what options are available to him.
- Further support for the above lies in the fact that the Aviation Services Law adopts to a large extent the European Regulation Regarding Compensation and Assistance to Consumers of Aviation Services - European Commission Regulation 261/2004 (see: Additional Civil Hearing 5783/14 Zemach v. El Al Israel Airlines Ltd., paragraph 68 of the judgment of Vice-President Jubran (September 12, 2017) (hereinafter: the Zemach case); see also the explanatory notes to the Aviation Services Bill (Compensation and assistance due to flight cancellation or change in its conditions (5772-2011, H.H. 7). This regulation contains an obligation to offer passengers a choice between restoring consideration and an alternative ticket:
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