On 26 March 2020, the Court of Justice held its judgment in Case C‑28/19, Ryanair Ltd, Autorità Garante della Concorrenza e del Mercato – Antitrust v. Autorità Garante della Concorrenza e del Mercato – Antitrust, Ryanair Ltd, Ryanair DAC, on the interpretation of Article 23(1) of Regulation (EC) No 1008/2008. The request has been made in proceedings between, on the one hand, Ryanair Ltd and the Autorità Garante della Concorrenza e del Mercato (Competition and Market Authority, Italy; “AGCM”) and, on the other hand, the AGCM and Ryanair Ltd and Ryanair DAC (“Ryanair”) concerning unfair commercial practices alleged against the airline Ryanair.

In 2011 the AGCM fined Ryanair since the prices published on its website did not include certain elements, which were classified as optional costs, namely the passengers’ online check-in fees, the value added tax (VAT) applied to the fares and to the optional supplements relating to domestic flights and the administrative fees for purchases made by means of a credit card other than that approved by Ryanair. Those elements, which were in fact compulsory, were initially charged to consumers during the process of online booking, thus contributing to increase the fare initially shown. Ryanair brought an appeal before the Regional Administrative Court for Lazio, which upheld the AGCM’s decision as regards the commercial practice relating to the prices shown.

Consequently, Ryanair brought an appeal before the Council of State (the “referring court”) which, in light of the need to interpret the relevant European legislation, stayed the proceedings and asked the Court of Justice whether Article 23(1) of Regulation No 1008/2008 must be interpreted as meaning that passengers’ online check-in fees, the VAT applied on fares and on optional supplements relating to domestic flights and the administrative fees for purchases made by means of a credit card other than that approved by the air carrier, fall within the category of unavoidable and foreseeable price supplements, within the meaning of the second sentence of that provision, or that of optional price supplements within the meaning of the fourth sentence of that provision.

The Court preliminary reminded that, according to Article 23(1) of Regulation No 1008/2008 and the related case-law, in its online offers for the carriage of passengers an air carrier such as Ryanair is obliged to indicate, from the first time that the price is shown, the air fare and, separately, taxes, charges, surcharges and fees that are unavoidable and foreseeable, whilst it must indicate the optional price supplements in a clear, transparent and unambiguous way at the start of the booking process. Consequently, the value added tax (VAT) applied to fares for domestic flights and administrative fees for purchases made by means of a credit card other than that approved by the air carrier, as unavoidable and foreseeable elements, are not optional price supplements within the meaning of Article 23(1) of Regulation No 1008/2008, unlike the VAT applied to optional supplements relating to domestic flights. The passengers’ online check-in fees, indeed, might be qualified as such only if the air carrier offered, as an alternative to paid options, one or more possibilities for checking-in free of charge.

Marco Stillo