Aviation Anthology Vol 1 2026 - Digital Version - Flipbook - Page 36
Commentary
1. The ruling of the CJEU in C-45/24 confirms that for
EU261 purposes, the “ticket price” is determined by
reference to the total amount paid by the passenger,
not by reference to the airline’s receipt from the
intermediary or agent, net of such commission
or fee. This is because where a passenger books
through an authorised intermediary and pays a
commission or fee, the same forms an integral part
of the ticket price – an “unavoidable” component
- and so is subject to reimbursement following
cancellation. Lack of knowledge of the amount of
the commission is no defence. Reimbursement turns
on what the passenger paid, not on what the carrier
received.
2. From the claims perspective, clarification by the
C-JEU in C-45/24 ought to narrow the scope
of dispute in EU261 flight cancellation ticket
reimbursement cases, lowering both complexity and
litigation cost in these claims.
3. The amount in issue in the facts of the claim behind
the reference to the CJEU in C-JEU in C 45/24
was modest - €95.14 - almost trivial, when viewed
in isolation. However, the decision’s significance
lies instead in scale. EU261 cancellation exposure
is driven by mass disruption events - adverse
weather events, industrial action, or air traffic control
issues - often affecting thousands of passengers
simultaneously. The cumulative reimbursement
obligation for carriers, inclusive now of intermediary
commissions as a matter of course, may therefore be
substantial.
4. A significant proportion of airline tickets in the UK
and European markets are sold via intermediaries,
particularly in the leisure sector. In broad terms, OTA
fees can range between £5 and £40 per ticket—but
higher amounts are not uncommon for long haul
or complex itineraries (particularly where bundled
services or flexible fare options are involved). The
obligation on the part of the carrier to reimburse
such fees following flight cancellation and inclusive
now of commission, has the potential to exceed the
carrier’s net ticket revenue on affected flights.
6. A surge in litigation between carriers and
intermediaries over the obligation of the former
to reimburse to passengers commission or fees
charged by and retained by the latter seems unlikely.
More plausibly, carriers will seek to renegotiate
agency agreements to introduce commission
clawback mechanisms, refund related indemnities,
or enhanced cooperation obligations. Over time,
carriers may also revisit commission structures, fare
presentation, or pricing to passengers, to reflect
cancellation risk more explicitly.
7. Although post Brexit decisions of the CJEU are no
longer formally binding on the courts of England and
Wales, Scotland, or Northern Ireland, C-45/24 will
constitute highly persuasive authority. In the absence
of express departure by a UK appellate court,
domestic courts are likely to follow its reasoning
when interpreting reimbursement obligations in
cases involving intermediary bookings.
Conclusion
From a carrier perspective, C-45/24 materially alters
the EU261 claims landscape. What was previously an
exception - reimbursement of agency or intermediary
commissions or booking fees - has now become
a largely settled obligation, falling squarely on
carriers. The judgment confirms a significant shift:
reimbursement exposure following flight cancellation
is assessed by reference to the total amount paid
by the passenger, not merely the amount retained
by the airline. This is particularly significant because
EU261 reimbursement obligations are not covered
by airline insurance programmes; they represent a
direct, uninsured cost that must be absorbed by the
carrier. In light of this development, renewed scrutiny of
agreements by carriers with their agents and other ticket
intermediaries is now a matter of prudence rather than
preference.
5. The Advocate General’s Opinion in case C-45/24
(provisional text, 19 June 2025) reflected on the
plight of the carrier but dismissed the same,
observing that the carrier “does not suffer any
disadvantage” because they retain the possibility
of seeking recourse against intermediaries. The
January 2026 CJEU judgment is strikingly indifferent
by its silence as to whether such recourse exists or is
commercially viable. The implicit message is clear:
unless risk has been contractually allocated, it rests
with the carrier.
36
DAC Beachcroft
Aviation Anthology 2026 - Volume I
