Travel law - the illegal practice of the local courts!
Does the reimbursement claim from the Passenger Rights Regulation also include the fees of the placement portal?
A significant number of travelers today no longer book their flight tickets directly with the airline or a travel agent; when looking for a bargain, one of the countless agency portals is used instead, which searches for the cheapest offer for the flight route in a matter of seconds: Opodo, Expedia, BERlogic, Cheaptickets, Check24, logitravel, bravofly and Flug.de are among the better-known representatives and es new ones are added regularly.
If the booked flight is canceled, the passengers have the same rights as if they had booked the flight directly with the airline. The consumer-friendly Air Passenger Rights Regulation (Regulation (EC) No. 261/2004) enables the passenger to claim his ticket costs in a simple way: Compared to the provisions of the German Civil Code, it is not necessary to represent the breach of duty by the airline - a fault, so to speak. A widespread mistake is that the repayment claim must be asserted against the agency portal: However, this does not become a contractual partner under the air transport contract. The contract is only concluded between the passenger and the airline, Opodo etc. only act as an intermediary. Anyone who has already purchased a ticket in this way and takes a look at their bill will find that this service was not free.
This can be answered with a crystal clear "yes and no".
The legal situation is actually relatively clear: The In its judgment of 12.09.2018 (Az. C-601/17) answered exactly this question. The basis were agency fees from Opodo. In short, the content of the judgment can be summarized in such a way that the reimbursement claim includes the agency fees if the airline knew about the agency activity when purchasing the ticket. Whether knowledge is available is a matter of fact and must be determined by the courts. At the same time, however, the ECJ stipulated that this knowledge is bogus if the agency fees are expressly shown in the booking confirmation.
This is mostly the case.
Since this judgment it is clear that the Airlines As part of the Ticket refunds also have to pay the agency fees. The case law thus joins a line of consumer-friendly decisions of the ECJ. It should be noted that otherwise the passenger would be forced to contact the airline on the one hand and the intermediary portal on the other after a flight cancellation. Since the agency fee is a small amount compared to the remaining price, it is often not worth taking legal action against the agency; the court and lawyer fees to be advanced exceed the demand many times over. In addition, the courts - already excessively overburdened in times of Corona - would be confronted with any further lawsuits for small claims, since the claim with regard to the reimbursement is split up. The judgment therefore not only has a beneficial effect on the process economy, but also corresponds to the meaning and purpose of the Passenger Rights Regulation, which is intended to increase the level of protection for passengers and facilitate the assertion of their rights.
Nevertheless, a number of judges in the local courts - where by far the majority of air travel law cases land - do not apply the ECJ case law.
They consider the case law of the ECJ to be simply wrong - although they are bound by the interpretation of the ECJ in comparable cases. The argument used here is, for example, that the passenger is not worthy of protection: the agency fee is explicitly stated in the booking confirmation so that the passenger can see that they are not part of the airline's costs. However, this turns the case law of the ECJ into the opposite.
Often one is powerless against this point of view of the court: This decision can only be taken against as part of the appeal. However, according to Section 511 (II) ZPO, the appeal is only permissible if the value of the subject of the complaint exceeds EUR 600 or the court of first instance has admitted the appeal in the judgment (cf. Section 511 (IV) ZPO). As shown, agency fees are mostly small amounts that are well beyond the 600 euro limit. Needless to say, the district court will not allow the appeal in the judgment. In the end, the passenger is faced with a materially and legally incorrect judgment and cannot do anything about it.
The result is unsatisfactory and one can only hope that this practice will be put to a halt at some point. Until then, one is limited to notifying the court in good time of the ECJ case law in order to prevent such errors from the outset. With good reasoning, some judges can be changed. However, this requires experienced air passenger rights lawyers.