Case C‑290/16

Air Berlin plc & Co. Luftverkehrs KG

v

Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV

(Request for a preliminary ruling from the Bundesgerichtshof)

(Reference for a preliminary ruling — Transport — Common rules for the operation of air services in the European Union — Regulation (EC) No 1008/2008 — Provisions on pricing — Article 22(1) — Article 23(1) — Information required on presentation of fares and rates available to the general public — Obligation to indicate the actual sum of taxes, charges, surcharges or fees — Pricing freedom — Invoicing of handling fees in the event of cancellation of a flight booking by a passenger or failure to present for boarding — Consumer protection)

Summary — Judgment of the Court (Fourth Chamber), 6 July 2017

1. Transport—Air transport—Common rules for the operation of air services in the EU—Regulation No 1008/2008—Levying of charges—Information required on presentation of fares available to passengers—Obligation to indicate, separately from the fares, the actual amounts payable by the public in respect of taxes, charges, surcharges or fees

   (European Parliament and Council Regulation No 1008/2008, Art. 23(1), third sentence)

2. Transport—Air transport—Common rules for the operation of air services in the EU—Regulation No 1008/2008—Pricing—Pricing freedom—Term in general terms and conditions of contracts of carriage by air which allows invoicing of handling fees in the event of cancellation of a flight booking by a passenger or failure to present for boarding—National legislation transposing the provisions of EU law on consumer protection allowing such a clause to be declared invalid—Lawfulness

   (European Parliament and Council Regulation No 1008/2008, Art. 22(1))

1.  The third sentence of Article 23(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community must be interpreted as meaning that, when publishing their air fares, air carriers must specify separately the amounts payable by customers in respect of taxes, airport charges and other charges, surcharges or fees referred to in subparagraphs (b) to (d) of the third sentence of Article 23(1) of that regulation and may not, as a consequence include those items, even partially, in the air fare referred to in subparagraph (a) of the third sentence of Article 23(1) of that regulation.

   That interpretation is corroborated by an examination both of the objectives pursued by the regulation of which the provision at issue in the main proceedings is part and of its context. Article 23(1) of Regulation No 1008/2008 seeks to ensure, in particular, that there is information and transparency with regard to prices for air services from an airport located in a Member State and accordingly to contribute to safeguarding protection of customers who use those services. The objective of ensuring information and transparency with regard to prices would not be achieved if the third sentence of Article 23(1) of Regulation No 1008/2008 were to be interpreted as offering air carriers a choice between including taxes, airport charges and other charges, surcharges and fees in the air fare, and indicating those various items separately.

   Moreover, a different interpretation of the third sentence of Article 23(1) of Regulation No 1008/2008 would deprive that provision of all practical effect. On the one hand, partial inclusion, in the air fare, of the items listed in subparagraphs (b) to (d) of the third sentence of Article 23(1) of Regulation No 1008/2008 would result in specifying only sums with no connection to reality. On the other hand, full inclusion of those items in the air fare would have the effect that the amount indicated in respect of the air fare could be equal to the final price to be paid. Moreover, the obligation to specify the final price to be paid is already laid down in the second sentence of Article 23(1) of that regulation.

   (see paras 29-32, 36, operative part 1)

2.  Article 22(1) of Regulation No 1008/2008 must be interpreted as not precluding the application of national legislation transposing Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts from leading to a declaration of invalidity of a term in general terms and conditions which allows separate flat-rate handling fees to be billed to customers who did not take a flight or who cancelled their booking.

   It is accordingly a general directive for consumer protection, intended to apply in all sectors of economic activity. In that context, it would be possible to find that that directive does not apply in the field of air services governed by Regulation No 1008/2008 only if it is clearly provided for by the provisions of that regulation. However, neither the wording of Article 22 of Regulation No 1008/2008 relating to pricing freedom nor that of the other provisions of that regulation permits such a view, even though Directive 93/13 was already in force on the date of adoption of that regulation.

   Nor can it be inferred from the objective pursued by Article 22(1) of Regulation No 1008/2008 that contracts of carriage by air are not subject to compliance with the general rules protecting consumers against unfair terms. Thus, Council Regulation (EEC) No 2409/92 of 23 July 1992 on fares and rates for air services (OJ 1992 L 240, p. 15), repealed by Regulation No 1008/2008, indicated in the fifth recital thereof that it was appropriate ‘to complement price freedom with adequate safeguards for the interests of consumers and industry’.

   The judgment of 18 September 2014, Vueling Airlines (C‑487/12, EU:C:2014:2232) cannot lead to a different conclusion. In that judgment, the Court considered that Article 22(1) of Regulation No 1008/2008 precludes legislation, such as that at issue in that case, which requires air carriers to carry, in all circumstances, baggage checked-in by their passengers without it being possible to charge any price supplement to carry such baggage. By contrast, the Court did not in any way state that pricing freedom precludes, in general, the application of any consumer protection rule.

   It cannot therefore be concluded from that judgment that Article 22(1) of Regulation No 1008/2008 precludes the application of national legislation transposing the provisions of EU law on consumer protection, such as those of Directive 93/13.

   It follows from the foregoing considerations that the pricing freedom of air services within the European Union, laid down in Article 22(1) of Regulation No 1008/2008, cannot prevent the application of such national legislation to the terms of contracts of carriage by air. To answer otherwise would be to deprive consumers of rights derived from Directive 93/13 in the field of pricing of air services and to enable air carriers, in the absence of any control, to include unfair terms concerning pricing in contracts concluded with passengers.

   (see paras 44-52, operative part 2)