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CJEU: Cancellation fees charged by airline companies may be assessed for unfairness

Cancellation fees charged by airline companies may be assessed for unfairness.  In addition, the various items which make up the final price to be paid to the airline companies must be indicated separately.

The German airline company Air Berlin included a term in its general terms and conditions stating that, when a passenger cancels a flight booking at an economy rate or does not take the flight, a sum of €25 is to be charged as a handling fee on the amount due to be reimbursed. The Bundesverband der Verbraucherzentralen (Federal Union of Consumer Organisations) considers that that term is invalid under German law, since it unduly disadvantages customers. Moreover, as it is the performance of a legal obligation, Air Berlin cannot charge separate fees. The Bundesverband accordingly brought an action before the German courts for an order prohibiting Air Berlin's practices.

In the context of the same action, the Bundesverband also challenges Air Berlin's practices concerning the display of prices on its website. During an online booking simulation in 2010, the Bundesverband noted that the taxes and charges indicated were much lower than those actually collected by the airports concerned. The Bundesverband considers that that practice may mislead the consumer and that it is contrary to the rules on price transparency laid down by the EU regulation on the operation of air services.

It is in that context that the Bundesgerichtshof (Federal Court of Justice, Germany) asked the Court of Justice for an interpretation of that regulation. The Bundesgerichtshof considers, in the same way as the Bundesverband, that the term relating to the handling fees of €25 in the event of cancelling a flight booking or not taking a flight unduly disadvantages customers and is accordingly invalid in accordance with the provisions of German law transposing the EU directive on unfair terms.2 The Bundesgerichtshof asks, however, whether the pricing freedom recognised for air carriers by the regulation on the operation of air services precludes a national law transposing EU law on consumer protection from applying to such a term. 

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