Air Berlin: the Court of Justice of the EU held that the general rules protecting consumers against unfair terms also apply to carriage by air
On 6 July 2017, the Court of Justice of the European Union held its judgment on the questions raised by Bundesgerichtshof (the German Federal Court of Justice), regarding an action where the Bundesverband der Verbraucherzentralen (The Federation of German Consumer Organisations), challenged a term included by the German airline Air Berlin in its general terms. According to this term, in the event of cancelling a flight booking or not taking a flight, a sum of 25 euro is charged to the passenger, as a handling fee, on the amount due to be reimbursed. The German Court considered that this term unduly disadvantages customers and is therefore invalid in accordance with the provisions of German law.
Moreover, also Air Berlin‘s practices concerning the display of prices on its website have been challenged, since it was noted that the taxes and charges indicated were much lower than those actually collected by the airports concerned, breaching the rules on price transparency laid down by the EU regulation on the operation of air services.
Therefore, the German Federal Court of Justice asked the Court of Justice for an interpretation of that regulation, in order to know if the provisions of German law transposing the EU directive on unfair terms can be applied to such a term, or if they are in contrast with the pricing freedom recognised for air carriers by the regulation on the operation of air services.
The Court found in that regard that the general rules protecting consumers against unfair terms also apply to contracts of carriage by air; therefore, the challenged term can be declared invalid in accordance with the provisions of German law.
The Court also added that, when publishing their air fares, air carriers must specify separately the amounts payable by customers in respect of taxes, airport charges and other charges, surcharges or fees and may not, as a consequence, even partially, include those items in the air fare, in accordance with the rules on price transparency required by the regulation on the operation of air services.
Davide Scavuzzo