Court of Justice of the European Communities (including Court of First Instance Decisions)

OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 1 March 2012 (1)

Case C-112/11

ebookers.com Deutschland

v

Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband eV

(Reference for a preliminary ruling from the Oberlandesgericht Köln (Germany))

(Article 23(1) of Regulation (EC) No 1008/2008 - Common rules for the operation of air services in the Community - Concept of 'optional price supplements' - Price of cancellation insurance provided by an independent insurance company, forming part of the overall price and charged to the passenger at the same time as the price of the flight)

I - Introduction

1. By order of 2 March 2011, received at the Court on 4 March 2011, the Oberlandesgericht Köln (Higher Regional Court, Cologne) (Germany) referred a question to the Court of Justice for a preliminary ruling under Article 267 TFEU on the interpretation 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 (Recast). (2)

2. The reference was made in proceedings brought by the Bundesverband der Verbraucherzentralen und Verbraucherverbände - Verbraucherzentrale Bundesverband eV ('the BVV') (an association of consumer protection offices) against the company ebookers.com Deutschland ('ebookers.com'), which sells air travel through an online travel portal operated by it. The proceedings concerned ebookers.com's practice of presetting on its website the taking out of a travel cancellation insurance.

3. The referring court essentially wishes to know whether the price of a travel cancellation insurance, which is provided by a third party (in this case an insurance company) but which is taken out in relation to, and booked together with, a flight via a website, constitutes an 'optional price supplement' within the meaning of Article 23(1) of Regulation No 1008/2008, any acceptance of which by the customer must therefore be on an 'opt-in' basis.

II - Legal framework

4. Recital 16 in the preamble to Regulation No 1008/2008 is worded as follows:

'Customers should be able to compare effectively the prices for air services of different airlines. Therefore the final price to be paid by the customer for air services originating in the Community should at all times be indicated, inclusive of all taxes, charges and fees. Community air carriers are also encouraged to indicate the final price for their air services from third countries to the Community.'

5. Article 2(18) of Regulation No 1008/2008 defines 'air fares' for the purposes of that regulation as meaning:

'... the prices expressed in euro or in local currency to be paid to air carriers or their agents or other ticket sellers for the carriage of passengers on air services and any conditions under which those prices apply, including remuneration and conditions offered to agency and other auxiliary services'.

6. Article 2(19) of that regulation defines 'air rates' as meaning:

'... the prices expressed in euro or in local currency to be paid for the carriage of cargo and the conditions under which those prices apply, including remuneration and conditions offered to agency and other auxiliary services'.

7. Article 23(1) of Regulation No 1008/2008, entitled 'Information and non-discrimination', provides as follows:

'Air fares and air rates available to the general public shall include the applicable conditions when offered or published in any form, including on the internet, for air services from an airport located in the territory of a Member State to which the Treaty applies. The final price to be paid shall at all times be indicated and shall include the applicable air fare or air rate as well as all applicable taxes, and charges, surcharges and fees which are unavoidable and foreseeable at the time of publication. In addition to the indication of the final price, at least the following shall be specified:

(a) air fare or air rate;

(b) taxes;

(c) airport charges; and

(d) other charges, surcharges or fees, such as those related to security or fuel;

where the items listed under (b), (c) and (d) have been added to the air fare or air rate. Optional price supplements shall be communicated in a clear, transparent and unambiguous way at the start of any booking process and their acceptance by the customer shall be on an "opt-in" basis.'

III - Facts, procedure and question referred

8. Ebookers.com markets air travel through an online travel portal operated by it.

9. According to the order for reference, when the customer selects a specific flight during the booking process, the costs are listed in the top right-hand corner of the internet page, under the heading 'your current travel costs'. In addition to the air fare, the list also contains an amount in respect of 'taxes and fees' and the further rubric 'travel cancellation insurance'. Then the 'total price of travel' is indicated.

10. There is a notice at the bottom of the website indicating how the customer should proceed - by means of an opt-out - should he not wish to take out insurance.

11. On finalisation of the booking, the total price must be paid by the customer to ebookers.com, which then pays the flight costs arising to the airline company concerned and the insurance costs to the insurance company and passes on the taxes and fees. The insurance company is legally and economically distinct from the airline company.

12. The BVV considers that the booking mode as described above on the website of ebookers.com constitutes an infringement of Article 23(1) of Regulation No 1008/2008 in that the acceptance by the customer of the offer to take out travel cancellation insurance takes place by an 'opt-out' procedure. In an action brought by the BVV before the Landgericht Bonn (Bonn Regional Court) that view was upheld.

13. The Oberlandesgericht Köln, which is asked to rule on the appeal lodged by ebookers.com against that decision, takes the view that it is not clear either from the wording or history of Regulation No 1008/2008 whether Article 23(1) of that regulation covers the taking out of a travel cancellation insurance such as that at issue in the main proceedings.

14. It points out in that regard that, on the one hand, Regulation No 1008/2008 concerns the 'operation of air services' and not, according to its wording, offers of insurance. In addition, the offer at issue does not in fact originate from an airline company but from an economically and legally distinct insurance company.

15. On the other hand, it is, in the view of the referring court, equally possible to interpret Article 23(1) of Regulation No 1008/2008 as also covering all price supplements, including those 'optional price supplements' for services offered by third parties, such as travel insurance companies, which are offered to the air traveller when he books his flight and in specific connection with that booking.

16. In those circumstances, the Oberlandesgericht Köln decided to stay the proceedings and refer the following question to the Court of Justice for a preliminary ruling:

'Does Article 23(1) of Regulation No 1008/2008, according to which optional price supplements are to be communicated in a clear, transparent and unambiguous way at the start of any booking process and are to be accepted by the customer on an "opt-in" basis, also apply to costs connected with air travel arising from services provided by third parties (in this case, an insurer offering travel cancellation insurance) and which are charged to the air traveller by the company organising the air travel together with the air fare as part of a total price?'

IV - Legal analysis

17. By its question, the referring court essentially wishes to know whether costs arising in connection with air travel for services provided by third parties, such as the travel cancellation insurance at issue, and which are charged to the customer by the company selling the flight together with the air fare as part of a total price constitute 'optional price supplements' within the meaning of Article 23(1) of Regulation No 1008/2008, so that acceptance by the customer of that price or, more particularly, of the offer of service concerned must be on an 'opt-in' basis.

A - Main submissions of the parties

18. In the present proceedings, written observations have been submitted by ebookers.com, the BVV, the Spanish, Italian, Austrian and Finnish Governments as well as by the Commission. Ebookers.com, the BVV and the Commission were represented at the hearing on 11 January 2012.

19. In the view of ebookers.com, the question referred should be answered in the negative, as Article 23(1) of Regulation No 1008/2008 does not cover the costs of services which are not part of an air service contract and which are not provided by air carriers.

20. That interpretation follows, according to ebookers.com, from both the history and wording of Regulation No 1008/2008 - in particular, Article 23(1) thereof - and is also consistent with the objective of that regulation, which is not intended to govern also offers outside the contractual relationships between air carriers and customers.

21. Taking the contrary view, the BVV, the Spanish, Italian, Austrian and Finnish Governments and the Commission unanimously suggest that the question referred should be answered in the affirmative.

22. In support of their view, those parties refer, in their slightly varying lines of argument, in particular to the purpose underpinning Regulation No 1008/2008, as it can be seen from recitals 15 and 16 in the preamble to the regulation, of enhancing consumer protection and enabling customers to compare effectively the prices for air services of different airlines. In their view, it is clear, in particular, from Article 2(18) and Article 23(1) of that regulation that it applies not only to air carriers and their own services but also to agents, intermediaries or, more generally, third parties and the services offered by them in connection with air services or the selling of tickets.

23. Those parties concur therefore that the costs of the travel cancellation insurance at issue in the present case fall to be regarded as an optional price supplement within the meaning of Article 23(1) of Regulation No 1008/2008, with the consequence, in particular, that its acceptance by the customer on the webpage of ebookers.com when he books a flight must be on the basis of an 'opt-in' process.

B - Appraisal

24. In order to establish whether the concept of 'optional price supplements' under Article 23(1) of Regulation No 1008/2008 is to be construed as also covering the costs arising for services such as the travel cancellation insurance at issue in the main proceedings, provided by a party other than an air carrier, it is necessary to analyse closely the content and purpose of that article and, in particular, the various prices and price components it refers to.

25. In that regard, it seems to me, first of all, on a more general level, that Article 23(1) of Regulation No 1008/2008 is intended, as is clear from its heading and its content, to ensure information and transparency with regard to prices for air services and that it thus serves, as several of the parties to the present proceedings have correctly observed, the general objective of protecting the customer or consumer of air services.

26. Next, more specifically, it is apparent that Article 23(1) of Regulation No 1008/2008 is based on a distinction between two main categories of prices and their components. Distinct requirements correspond to each of those categories and pursue particular aims as regards information concerning the cost of air services and the protection of the customer or consumer in that regard.

27. First, central to Article 23(1), first and second sentences, of Regulation No 1008/2008 is the notion of the 'final price' composed of the applicable air fare or air rate - as broadly defined under Article 2(18) and 2(19) of the regulation, respectively - as well as all applicable taxes and charges, surcharges and fees.

28. The final price to be paid by the customer for air services must, according to that provision, at all times be indicated alongside its components as further specified under that provision.

29. That rule is intended, as is clear from recital 16 in the preamble to Regulation No 1008/2008, to enable customers to compare effectively the prices for air services of different airlines.

30. To that effect, for there to be effective price comparison, it must be ensured that the final prices to be indicated relate to a similar (air) service and comprise, as far as possible, similar price components. That is why Article 23(1), second sentence, of Regulation No 1008/2008 defines the cost components, such as charges and fees, which must be included in the final price at all times to be indicated as being those which are 'unavoidable and foreseeable at the time of publication'.

31. In that way, the customer will be informed about the actual costs of flying with a particular airline, under usual conditions, from A to B and will be able to compare that price with the actual price of the same flight operated by another airline or offered by other agents or ticket sellers.

32. Secondly, and by contrast, the 'price supplements' to which Article 23(1), last sentence, of Regulation No 1008/2008 refers, cannot, as the Commission has correctly observed, be regarded as forming part either of the 'final price' for the purposes of that provision (3) or of the air fare itself as one of its components.

33. Those supplements are described as 'optional': thus by definition they are prices or costs which - unlike the air fare and other price components referred to in Article 23(1), second sentence, of Regulation No 1008/2008 - are not unavoidable if a particular flight is to be taken and accordingly concern 'extras' in relation to the air service itself which the customer can choose to accept or not. It is precisely because the customer has that choice - which is not the case so far as the air fare itself or the taxes and charges are concerned - that such supplementary prices can, in principle, be made subject to an 'opt-in' or an 'opt-out' procedure.

34. If, on the contrary, such optional price supplements were to be regarded as part of the final price to be indicated at all times for the purposes of Article 23(1) of Regulation No 1008/2008, first and second sentences, the final prices thus made available to the public could refer to widely differing services or packages of services and the comparability of the prices for air services of different airlines would in fact be undermined.

35. That is also why, contrary to what the Commission has suggested, the provision in Article 23(1), third sentence, of Regulation No 1008/2008 on optional price supplements of the kind at issue in the present case does not serve the purpose, referred to in recital 16 in the preamble to that regulation, of ensuring the effective comparability of prices for air services.

36. Rather, that provision lays down a distinct and specific requirement as regards optional price supplements, namely that such prices are to be communicated in a clear, transparent and unambiguous way at the start of any booking process and that acceptance of them - or, more precisely, of the offer for which the price supplement will be paid - by the customer are to be on an 'opt-in' basis.

37. That rule is obviously intended to serve a specific and - in relation to the comparability of prices - additional aim of consumer protection as regards prices for air services, namely to prevent consumers from being induced when booking a flight - because the optional price component and the underlying offer are automatically preinstalled in the booking process - to buy and pay for extra services which are not unavoidable or necessary for the purpose of taking the flight intended, unless they actively and expressly choose to accept such additional offers and the prices to be paid for them.

38. Given that that is the decisive objective of the provision on 'optional price supplements' in Article 23(1) of Regulation No 1008/2008, it must, in my view, be concluded that that concept is intended also to cover the price for a service like the taking out of a travel cancellation insurance such as that at issue if it is offered and booked in connection with a flight in the way described by the referring court.

39. As several of the parties have correctly observed, it would appear to be at odds with that provision's purpose of protecting the consumer or customer if that protection were to depend on whether the optional service and price offered during the process of booking a flight originate from an airline company or from a legally distinct company, or on whether or not that service strictly forms part of an air services contract.

40. One could even argue - as the Commission in essence does - that, in the context of the booking of air travel, it is particularly where services and prices which are not strictly and typically related to the taking of a flight itself are offered to, and can be booked by, the air traveller that acceptance of such services and prices should, looked at from the point of view of protection of the customer, be subject to express acceptance by means of an 'opt-in' procedure.

41. The decisive point regarding Article 23(1), third sentence, of Regulation No 1008/2008 is therefore, in my view, not the fact that the price supplement concerned originates from an airline company or an agency related to it or that it is paid, strictly speaking, in consideration for air services, but rather the fact that the optional service and its price are offered in connection with an air service/flight and can be booked in the same process as that service/flight.

42. Moreover, that interpretation, contrary to the view taken by ebookers.com, is not inconsistent with the scope of Regulation No 1008/2008.

43. In that regard it should be borne in mind, first, that under Article 1(1) of that regulation, its subject-matter, as well as being defined by reference to air carriers (according to that provision, the regulation regulates the licensing of Community air carriers and their right to operate intra-Community air services), also encompasses, in more general terms, 'the pricing of intra-Community air services'.

44. Moreover, although, as the Finnish Government has correctly observed, Article 2(18) of Regulation No 1008/2008 concerns the definition of 'air fares' and the price components forming part of their cost-structure and is thus not directly relevant for the interpretation of the - as argued above - distinct concept of 'optional price supplements', it is noteworthy that point 18 also makes reference to prices and costs which in fact originate from and are credited to persons other than air carriers themselves such as agency and other auxiliary services.

45. Similarly, the final price to which the obligation of information under Article 23(1) of the regulation relates, is expressly stated to contain price components which are not necessarily paid as consideration for services provided by air carriers themselves and which in fact originate from, and are to be paid to, third parties legally distinct from an airline company: those components include taxes or also charges such as airport charges or charges related to security.

46. It therefore seems to me, from a reading of the aforementioned provisions of Regulation No 1008/2008, that, contrary to the view taken by ebookers.com, a price or cost component is not excluded from the scope of that regulation merely because it arises from, or is to be paid as consideration for, a service provided by a third party which is legally distinct from a flight carrier or because it does not arise directly from the carrying out of air services themselves, as defined in Article 2(4) of the regulation, but merely arises in connection with such services.

47. Finally, the fact that acceptance by means of an opt-out procedure is not generally prohibited under consumer protection legislation does not, to my mind, cast doubt on the interpretation whereby, in the context of air services and their prices under Regulation No 1008/2008, the prohibition of acceptance by an opt-out procedure applies to costs such as that of taking out a travel cancellation insurance. Nor in my view can it validly be argued that such an interpretation would amount to discrimination against airline companies as compared with other companies in the transport sector (such as train service operators) simply because, at least at present, there is not yet comparable protection as regards the booking of tickets and optional price supplements.

48. In the light of all the foregoing, I propose that the answer to the question referred should be that the concept of 'optional price supplements' under Article 23(1) of Regulation No 1008/2008 is to be interpreted as covering the costs of services provided by third parties - for example, the cost of taking out a travel cancellation insurance such as that at issue in the main proceedings - where the service and the price to be charged for it are offered together with a flight and can be booked in the same process as the flight and where that price is charged to the customer by the company selling the flight together with the air fare as part of a total price.

V - Conclusion

49. For the reasons given above, I propose that the question referred by the Oberlandesgericht Köln (Germany) should be answered as follows:

The concept of 'optional price supplements' under 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 (Recast) is to be interpreted as covering the costs of services provided by third parties - for example, the cost of taking out a travel cancellation insurance such as that at issue in the main proceedings - where the service and the price to be charged for it are offered together with a flight and can be booked in the same process as the flight and where that price is charged to the customer by the company selling the flight together with the air fare as part of a total price.

1 - Original language: English.

2 - OJ 2008 L 293, p. 3.

3 - That 'final price' for the purposes of Article 23(1) of Regulation No 1008/2008 must be distinguished from the final sum or 'final price' which a customer may have to pay at the end of a booking process consisting in fact, as in the present case, of the final price to be paid for the flight or air services and the price to be paid, in connection with that, for other services such as the travel cancellation insurance.

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