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18 September 2019
An airline based in Germany offered flights from the United Kingdom to Germany on its website. The air fares were listed in sterling but not in euros.
The Baden-Württemberg consumer association deemed this to be unacceptable, believing that the air fares should be listed in euros. It therefore asked the airline not to display air fares in sterling in future.
The consumer association commenced legal action before the Cologne Regional Court, which granted its request. On appeal by the airline, the Cologne Higher Regional Court overturned the first-instance decision, holding that airlines are not obliged to list air fares in euros only.
The consumer association appealed to the Federal Court of Justice, which suspended the proceedings and requested a preliminary ruling from the European Court of Justice (ECJ).
According to the Federal Court of Justice, the interpretation of Article 2(18), 23 I of EU Regulation 1008/2008 on common rules for the operation of air services would be decisive for the case's outcome. Under the regulation, airlines that offer flights departing from EU airports must list passenger fares; however, whether airlines have the right to choose the currencies of said listings required further clarity.
The ECJ addressed the question of whether airlines are in principle entitled to choose which currencies in which their air fares are listed (Decision C-330/17 of 15 November 2018).
According to EU Regulation 1008/2008, air fares for intra-EU air services may be listed "in Euro or in national currency". However, the regulation does not define 'national currency'. An interpretation based on sense and purpose suggests that airlines are not entirely free to choose. This follows the preamble to the regulation that passengers should be able to easily compare air fares, which would be undermined if airlines can choose currencies arbitrarily.
An objective criterion was therefore required to determine which currency airlines should use when listing their air fares. The case at hand had such a criterion, as the currency of the fare had matched that of the country of departure. According to the ECJ, the currency of passengers' place of residence should also be considered.
This preliminary ruling corresponds to previous ECJ case law on aviation matters. However, the court's findings are arguably not mandatory. Thus, in addition to the place of departure and destination and the implied residence of the passenger, the national currency of the country in which the airline is headquartered may also be taken into consideration – at least in cases involving EU airlines – as this is usually the place where important decisions are made with regard to how flights are handled.
As such, air service providers may also form part of the objective criteria for determining the currency used when listing air fares. However, in the case at hand, as the currency of the defendant's domicile (ie, euros) was identical to that of the destination country, this aspect was not discussed by the court.
For further information on this topic please contact Carsten Vyvers at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email (firstname.lastname@example.org). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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