The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, has ruled that a "daily updated price system", in which the tour operator reserves the right to make airport surcharges and discounts of up to €50 for each flight route in its brochure for the period until the booking, does not violate applicable price law (Flexible Price Indications).
The Zentrale zur Bekämpfung unlauteren Wettbewerbs (Central Office for Combating Unfair Competition) had sued the tour operator TUI because of the price information in a brochure for package tours, especially to the Costa del Sol. In the brochure, in connection with the indication of the costs for the hotel stay and the flight, reference was made to an overview which showed a basic price for a certain destination - depending on the selected hotel, room category and travel time. With regard to the surcharges or discounts for the respective departure airport, the brochure referred to the fact that the travel price could increase or decrease by 50 euros per flight leg depending on the time of booking and the departure airport. These surcharges or discounts could be requested from the travel agency on a daily basis.
According to the plaintiff, TUI violated the applicable price law because the consumer could not infer a binding travel price from the brochure.
The Regional Court of Hanover had ruled in favour of TUI. The Higher Regional Court of Celle had dismissed the action.
The Federal Supreme Court confirmed the decision of the Court of Appeal in the result. However, the Higher Regional Court had wrongly assumed that the objectionable advertisement was admissible already because individual price components to be borne by the consumer were not yet known at the time of the advertisement. However, the defendant's advertisement complained of contains a reservation of the right to adjust prices, which - according to the Federal Court of Justice - is permissible at least according to the provision in § 4 para. 2 sentences 2 and 3 BGB-InfoV in force since 1 November 2008. Such a reservation allows tour operators greater price flexibility in the case of catalogue-based offers, as is readily available in the case of internet sales. In the brochure complained of, the defendant reserved the right to change the price only to a limited extent (± €50 per flight route) and only with regard to the airport surcharges and discounts. The fact that the final prices could change within this framework even before the booking was pointed out with sufficient clarity.
Judgment of the Federal Court of Justice of 29 April 2010 - I ZR 23/08 - Costa del Sol
Lower courts:
LG Hannover - Judgment of 5 September 2007 - 23 O 156/06
OLG Celle - Judgment of 24 January 2008 - 13 U 180/07, VuR 2008, 223
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: Info@goldberg.de
