Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 35
EU261: presumed knowledge and the price of flight cancellation
(Case C-45/24, Verein für Konsumenteninformation v Koninklijke
Luchtvaart Maatschappij NV)
Overview
The recent judgment of the Court of Justice of the
European Union (“CJEU”) in case C-45/24 Verein für
Konsumenteninformation v Koninklijke Luchtvaart
Maatschappij NV, provides a further example of the
CJEU’s passenger protective interpretation of Regulation
(EC) No 261/2004 (“EU261”). For air carriers, the
decision has clear and potentially significant financial
implications for ticket reimbursement obligations
following flight cancellations where bookings are made
through intermediaries.
In practical terms, reimbursement of the “ticket price”
under EU261 will now, as a rule rather than an exception,
include agency commissions or booking fees paid by
passengers. The reasoning of the CJEU is that since such
commission or booking fee constitutes “an ‘unavoidable’
component of the price of the airline ticket,” it falls within
the scope of the carrier’s statutory reimbursement
obligation under EU261.
The legal context under EU261
Where EU261 applies and, following a flight
cancellation, a passenger opts for reimbursement rather
than re-routing, Article 8(1)(a) requires the carrier to
refund “the full cost of the ticket at the price at which it
was bought.” Where tickets are purchased through an
intermediary – most commonly an online travel agent
(“OTA”) - the amount paid by the passenger typically
exceeds the underlying air fare and taxes, and includes
a separate commission or booking fee, retained by
the intermediary. The treatment of that additional
element has long been a point of contention between
passengers and carriers.
Harms (C-601/17): the starting point
In Harms (CJEU, 12 Sept 2018, Harms and Others v
Vueling Airlines SA,C-601/17), the CJEU held that for the
purposes of Article 8(1)(a), the price at which the ticket
was bought includes an intermediary’s commission,
Aviation Anthology 2026 - Volume I
and must therefore be reimbursed to the passenger,
unless that commission was fixed without the air carrier’s
knowledge.
Harms remains the bedrock authority on the issue, and
is expressly referenced in the European Commission’s
revised Interpretative Guidelines on EU261, published
on 25 September 2024. However, Harms left unresolved
the question of “knowledge” on the part of the carrier
that is sufficient to engage or defeat the exception.
Eight years on, that uncertainty has been addressed in
C-45/24.
C-45/24: clarification and consolidation, not
reversal
The CJEU’s decision in C-45/24, on referral from the
Oberster Gerichtshof (Supreme Court, Austria) for a
preliminary ruling, does not depart from Harms: rather
it clarifies and strengthens it. Crucially, the Court adopts
a markedly more objective approach to the concept
of knowledge. The Court held that where an airline
authorises, cooperates with or otherwise permits an
intermediary to sell tickets in its name and on its behalf,
the carrier must, in principle, be regarded as aware that
the intermediary charges a commission to passengers.
This is so even in the absence of any express contractual
provision dealing with commission and even if the
carrier does not know the precise amount charged.
Knowledge of the existence of commission charging –
rather than knowledge of its quantum - is sufficient.
This approach is explicitly grounded in the consumer
protection objectives of EU261, which are prominent
throughout the Court’s reasoning:
“..since that commission cannot be avoided by the
passenger when purchasing the ticket… the collection of
that agency commission, as an ‘unavoidable’ component
of the price of the airline ticket, must be regarded
as being authorised by the air carrier and, therefore,
as having to be reimbursed under Article 8(1)(a) of
Regulation No 261/2004.”
DAC Beachcroft
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