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30 April 2014
In a September 18 2013 court order the Federal Court of Justice submitted a request for a preliminary ruling to the European Court of Justice (ECJ) on the interpretation of Article 23 of EU Regulation 1008/2008 (ECJ C-573/13; BGH I ZR 29/12).
The ECJ must now decide on the following questions:
On an air carrier's homepage, customers can book flights via a five-step comprehensive booking system. In the first step, the date, departure and destination can be entered. In the second step, a table with departure and arrival times, including prices, is displayed. The prices in the table do not include taxes, airport fees, fuel surcharges or the €10 service charge. The price per person including taxes, airport fees and fuel surcharges is shown just below the price table and is listed only for the respective preset or clicked flight. An asterisk refers to the possibility of a service charge. After the customer enters his or her personal data in the third step, the final price including the service charge is depicted in a fourth step.
The Federation of German Consumer Organisations – a non-governmental organisation acting as an umbrella for 41 German consumer associations – considered the practice to be a violation of European law and therefore filed a claim before the Berlin Regional Court. The Berlin Regional Court, as well as the Court of Appeal, ruled in favour of the plaintiff. According to the appeal court, Article 23(1)2 of Regulation 1008/2008 states that the final price to be paid should be indicated "at all times". The Federal Court could not decide conclusively whether the price display was a violation of Article 23(1)2. The court therefore stayed the proceedings and referred the questions to the ECJ.
The Federal Court argued that the regulation does not specify an exact time when the final price must be indicated. The appeal court's reasoning that the final price needs to be displayed at all times does not necessarily correspond with the spirit of the regulation. The regulation aims to enable consumers to effectively compare prices of different air carriers. The provision is meant to guarantee information and transparency and strenghthen consumer protection. The wording 'at all times' could also be understood as to mean that the final price must be disclosed without having to determine a specific time.
Further, it was unclear to the Federal Court in what way the final price must be specified for an air service. The appeal court took the view that even at the first indication of fares, and always when a page contains a fare quotation, the final price must be indicated. The Federal Court added for consideration that this understanding might be too narrow. While this would present the most effective way for customers to obtain as much information as possible at a glance, the Federal Court pointed out that the requirements for presenting a final price cannot be seen separately from the form of the publication. The court admits that the provision does not refer to a price comparison which must be designed, within technical possibilities, as conveniently as possible for customers. Therefore, a different understanding from the appeal court's reasoning could be considered.
In case the ECJ follows the appeal court's legal understanding and consideration, online travel agencies might have to re-design their internet booking engines and booking processes. At this stage, the expected effort and the gain for the consumers seem to be disproportionate. It can be assumed that the average traveller is prepared that at the end of the booking process the final price including all and various price components will be stated.
Depending on a passenger's wish to add supplemental services or items such as insurance, chargeable payment methods during the booking process are undergoing a dynamic course in transportation services anyway. It is hard to see any benefit for passengers and only a disadvantage for the service provider.
For further information on this topic please contact Katja Helen Brecke or Ulrich Steppler at Arnecke Siebold Rechtsanwälte by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email (email@example.com or firstname.lastname@example.org). The Arnecke Siebold Rechtsanwälte website can be accessed at www.arneckesiebold.de.
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