Newsletter Winter 2017 – Some Recent Aviation Jurisprudence



ECJ – JUDGEMENT – 6 July 2017 – Case C-290/16 – Air Berlin – Germany – ECLI:EU:C:2017:523


 Flight cancellation fee; unfair terms in consumer agreements

Regulation (EC) no. 1008/2008. This case concerns among others a German scheme that prescribes that airlines may charge no administrative costs to customers who do not show up for their flight or have cancelled it.

Court of Justice: The cancellation fees charged by airlines can be assessed concerning their lack of fairness. Moreover, the various elements of the final price to be paid to the airlines must be listed separately. Thus, by Article 23, paragraph 1, third sentence of Regulation (EC) no. 1008/2008 it must be understood that airlines, when announcing their passenger rates, must separately specify the amounts payable by the customer, according to article 23, paragraph 1, third sentence, under b), c) and d), for the taxes, airport charges and other charges, surcharges and fees, and therefore these may not, not even partially, be incorporated into the passenger rates referred to in Article 23, paragraph 1, third sentence, under a), of that regulation.

Thus, Article 22, paragraph 1, of Regulation no. 1008/2008 must be understood as not precluding, when applying a national provision that has transposed Council Directive 93/13/EEC of the Council of 5 April 1993 on unfair terms in consumer agreements, the nullification of a stipulation in the general terms and conditions on the basis of which customers who do not show up for a flight or have cancelled their reservation, can be charged separate fixed administrative costs.

Pricing of flights – CJEU in Air Berlin (C-290/16) (ECLB)

REFERENCE FOR A PRELIMINARY RULING – Germany – 6 July 2017 – Joined preliminary Court of Justice cases C-195/17 – C-203/17, C-226/17, C-228/17, C-254/17, C-274/17 – C-286/17 and C-290/17 – C-292/17 Krüsemann et al.

Airlines claim; questions on a delay caused by sickness absence due to dissatisfaction after the announcement of restructuring plans; The term strike; exceptional circumstances

Regulation (EC) no. 261/2004. The applicants in these joined cases all booked flights with respondent TUI to fly to Portugal and Greece. The delays in these cases were caused by logistics problems on the part of respondent. Respondent argues for exceptional circumstances: personnel absent due to sickness that would have resulted from restructuring plans in the company that led to great resistance among personnel. Does sickness absenteeism result in extraordinary circumstances within the meaning of Regulation 261/2004, and if so, what percentage? The question concerns how this cause should be evaluated, since respondent, by announcing the restructuring measures, possibly itself contributed to the situation that was created. A strike is not a part of the normal exercise of activities. However, the question is whether here in fact there really was a strike – there was no call for a strike on the part of the trade union. It seems to have been a decision by the employees themselves. The judge thus assumes that no extraordinary circumstances are present here.

Only Case C-292/17 is different; here only one question was asked:

“Is the cancellation of a flight then also the result of an exceptional circumstance within the meaning of Article 5, paragraph 3 of Regulation (EC) no. 261/2004 when the circumstances (in this case a ‘wildcat strike’ or a ‘wave of sickness’) only indirectly affect this flight, since the airline had reorganised its entire flight plan due to these circumstances and, in accordance with this reorganisation, the flight in question was cancelled? Can an airline also be exempted under Article 5 paragraph 3 of Regulation (EC) no. 261/2004 if the flight in question could have been carried out without the reorganisation since the crew scheduled for this flight would have been available if this crew would not have been assigned to other flights as a result of the reorganisation?” Cited (recent) case law: C-549/07 Wallentin-Hermann;

REFERENCE FOR A PRELIMINARY RULING – Germany – 7 July 2017 – Case C-330/17 –

Verbraucherzentrale Baden-Württemberg

Consumer protection, aviation; currency indication passenger fares

REFERENCE FOR A PRELIMINARY RULING – Germany – 11 August 2017 – Case C-418/17 – Fabri et Mathes


Aviation; denied boarding; consumer protection

Regulation (EC) no. 261/2004. Applicants booked a flight package with Beluga Reisen. Respondent’s outgoing flight should have departed on 14.05.2016. On 11.05.2016, applicants were informed by the tour operator that the outbound flight was rebooked to another flight. Applicants were transported with this other flight. The originally booked flight was carried out by respondent according to plan. Applicants are of the opinion that respondent is obliged under the regulation to pay compensation of € 400, plus interest. Respondent replied that it had not refused to transport the applicants and was not responsible for the rebooking by the tour operator. From the passenger’s point of view, who did not agree with the rebooking, the cancellation comes down to a refusal to transport him on the scheduled flight. Does the rebooking to a different flight fall within the scope of Article 4, paragraph 3 of Regulation (EC) no. 261/2004? If the first question is answered in the affirmative: Is this provision also applicable to a rebooking that does not originate from the airline, but only from the tour operator? Cited (recent) case law: C-525/08.

REFERENCE FOR A PRELIMINARY RULING – Germany – Case C-456/17 – Glanzmann and others.

Aviation; air passenger compensation; lower class; ticket booked with ‘miles’; explanation of concept “ticket price”

Regulation (EC) no. 261/2004. In September 2011, Glanzmann, a Swiss citizen, booked for himself and his family (applicants) multiple flights for a family vacation in Aruba for the summer of 2012. The flights were handled by three different airlines (Frankfurt CL, Lufthansa, US Airways). Ganzmann paid for the flights with ‘miles’ (saved in the Frequent Flyer programme of US Airways). Instead of the booked first class, Glanzmann was assigned to business class, thus a lower class than that for which the ticket was purchased. The legal effect of this conduct of respondent was its obligation to repay 75% of the ticket price within seven days, according to that which is stipulated in Article 7 (3). Questions about the concept of “ticket price”: must the passenger contact the company from which he received the miles he used for the payment, or the airline who actually handled the flight? Which airline is required to make the repayment? Cited (recent) case law: C-255/15