OVERBOOKING
16.08.2019 | Global Legal Matters | 1652
1. What
is Overbooking?
Overbooking is not
just air transport; entertainment sector, tourism sector and other sectors
where participant individual factor is the most important profit factor in
terms of commercial activity. Accordingly, firms determine the number of
possible cancellations for their next activity based on the statistical data
acquired in past organizations and activities, and add the number of possible
cancellations to the maximum number of people who can participate in an event,
specifying the total number of tickets (or another document of ownership).
presents. In this way, it tries to minimize the possibility of loss as a result
of possible cancellations and refunds made as a result of these cancellations.
Of course, the predictions arising from the statistics are not always realized
and in some cases there is no cancellation. In this case, overbooking is
attracted to the public, because the overbidding of some people from the
organization as a result of the sale (or even those who refuse to be banned
from the organization) and damage the sense of equity of the community
conscience. Companies are able to guarantee themselves through overbooking, but
they can also provide people with tickets at a lower price under this guarantee.
2. Overbooking
in Civil Aviation Rules
Of course, the
International Air Transport Association (IATA) is one of the leading institutions that free and even promote
overbooking. IATA states that overbooking is more necessary in air transport
than in other sectors because it is possible to sell canceled tickets which
cannot be sold by a hotel or an organization company, even during busy periods
or events, but this can only be realized in air transport until the plane
leaves the runway; this may cause great losses for airline companies. However,
it is accepted that this is not limitless, and that a near-definitive result is
obtained from the statistical data and that overbooking should be performed in
this number. IATA also states that providing cheap and high-quality service to
the passengers we mentioned above is due to the fact that in 2016, only 0.09%
of all passengers were asked to / were forced to leave the flight due to
overbooking in the USA; In a situation that can be described as a competition
of benefits, overbooking also provides advantages to passengers.
Legal regulations are intended to
prevent violations of passenger rights that may occur as a result of
overbooking, which has already been adopted by IATA rules and sector structure.
In this context, it can be said that one of the most important international regulations in terms of Turkish Law is the
Regulation No. 261/2004 of the European Union. It can be said that this
Regulation has had an impact in Turkish Law and was based on the Regulation on
the Rights of Passengers Traveling by Air and the instructions issued based on
this regulation. In accordance with Article 4 of the Regulation titled “Denied
Boarding”, the rights of passengers are guaranteed if they are not
accepted due to overbooking. Similarly, Article
5 of the Regulation regulates the
non-admission status and states the rights of the
passenger by referring to the relevant articles of the same regulation.
In case of overbooking if there
are more passengers than the capacity, the company searches for a volunteer who
can waive on his/her rights. These volunteers are offered refunds, arranging
flights to another date they deem appropriate, and changing routes to the final
destination. At the same time, as required by the Regulation, it is obliged to
pay compensation 100 euros for domestic flights and in the range of 200-600
euros according to the destination of destination for international flights. In
case of flight delay / cancellation, the
facilities provided to the passengers are also valid for the passengers not accepted to the aircraft. In a
decision of the Court of Cassation, in a
claim that the passenger was not admitted to the plane and suffered
non-pecuniary damage, the fact that the passenger candidates were not taken to
the plane despite fulfilling all their actions and diligence on their behalf,
as well as the practice (overbooking), discriminated between the persons taken
and received, It has the potential to undermine the principle of equality which
can lead to and is protected by the Constitution. Moreover, the defendant
(airline) has to act as a prudent merchant and has decided to pay non-pecuniary
damages by saying that air transport is a commercial activity that requires
special permission and has its own legislation and extended responsibilities (Court of Cassation
11th Civil Chamber App. No. 2015 / 11487., Judg No. 2016 / 6313.).
In another decision of the Court of Cassation “although the defendant argued
that overbooking is a normal practice, the fact that a number of transactions
and applications become usual over time does not mean that the transaction and
the application is correct and does not require the removal of the negative impact on the people”. in the form
of. (Court of Cassation 11th Civil
Chamber 2014 / 13992E., 2014 / 20286K.)
3.
Conclusion
It is a fact that overbooking is
essential for airlines. If the limits and the rights of the passengers are
determined by legal regulations and subject to strict supervision, there is no
harm in overbooking. Nor is it possible to prohibit it. Because airline
companies are ultimately a trade company, aiming for commercial benefits; not
in the public interest. Accordingly, it makes commercial contracts. As with any
contract, the Air Transportation Agreement signed between companies and
passengers should be considered within the scope of freedom of contracts guaranteed by international and
national legislation. Of course, companies are obliged to take the necessary
measures under the obligation to act as a prudent merchant and there is the
possibility of termination of these contracts with passengers over the capacity
of the aircraft due to the capacity fullness. Only a breach of contract
situation can occur here. Firm Abuse of the right will not constitute a right
to abuse if the firms are constantly contracting a large number of contracts
and if the projections are not fulfilled. Companies realize the requirements of
the air transport sector. Therefore, I do not agree with the Supreme Court's
overbooking attitude. However, the lack of legal basis and supervision of
firms' overbooking book post attitudes is contrary to the law, not following
the wrong policies and not taking the ending, late passengers to the flight
without voluntarily seeking passengers to give up the flight voluntarily.
