16.08.2019 | Global Legal Matters | 1319
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.)
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.