The I. Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, has ruled that airlines must indicate the final price to be paid, including all price components, in the context of an electronic booking system each time they indicate prices for flights and thus also when prices are indicated for the first time.
The defendant is an airline which provides, at its internet address, an electronic booking system comprising several steps for the flight services it offers. Until the end of 2008, this booking system was designed in such a way that the customer, after selecting the destination and the date in the first step, was presented in a second step with a table showing departure and arrival times and the airfare in two different tariffs in each case. Below the table, the taxes and fees as well as the paraffin surcharge for a selected flight were shown in a separate box and the "price per person" calculated from this was indicated by a border. Behind the box, there was an asterisk which, at the end of the second booking step, pointed out the possible incidence and conditions of a service charge which was not initially included in the final price. After the customer had entered the necessary data in a third booking step, the travel price including the service charge was shown in a fourth booking step.
After Regulation (EC) No 1008/2008 on common rules for the operation of air transport services in the Community entered into force on 1 November 2008, the defendant changed its booking system in 2009. In the second booking step, the defendant again listed only the air fare in the tabular overview of departure and arrival times. For a selected flight, the defendant indicated the fare, taxes and charges, the paraffin surcharge and the sum of these amounts at the end of the table. In a separate box below the table, the price formed from this information and the "service charge" were indicated and the price per person calculated from this was shown below.
In the view of the plaintiff consumer protection association, both price representations do not comply with the requirements of Art. 23 para.1 sentence 2 of the c. The plaintiff therefore filed a claim against the defendant for injunctive relief and for reimbursement of its warning costs. The District Court upheld the action. The defendant's appeal was unsuccessful. With its appeal, which was allowed by the senate, the defendant continues to pursue its motion to dismiss the action.
By order of 18 September 2013, the Federal Court of Justice stayed the proceedings and referred questions to the Court of Justice of the European Union for a preliminary ruling on the interpretation of the second sentence of Article 23(1) of Regulation (EC) No 1008/2008.
The Court of Justice ruled on this in its judgment of 15 January 2015. According to that judgment, the second sentence of Article 23(1) of Regulation (EC) No 1008/2008 must be interpreted as meaning that, in the context of an electronic reservation system such as that at issue in the main proceedings, the final price to be paid must be shown whenever prices for air services are indicated, including when they are indicated for the first time. The final price to be paid must be shown not only for the air service selected by the customer but for each air service whose price is displayed.
The Federal Supreme Court has now rejected the defendant's appeal. The tabular presentation of prices of the impugned booking system in the version used by the defendant until the end of 2008 violated the requirements of Article 23(1) sentence 2 of Regulation (EC) No 1008/2008 because only the pure air fares were shown for the air services presented in the table and the final price for a specific air service was only indicated in the further booking process on later internet pages. There was thus a lack of a clear presentation of the final prices. Even in the booking system of the defendant, which was changed in 2009, the indication of a final price (air fare plus taxes and charges, paraffin surcharge and service charge) was only given for a selected flight and not for all air services displayed in the table, contrary to the requirements of Art. 23 para. 1 sentence 2 of the Regulation.
Judgment of the Federal Court of Justice of 30 July 2015 - I ZR 29/12 - Buchungssystem II
Berlin Regional Court - Judgment of 20 April 2010 - 16 O 27/09
KG Berlin - Judgment of 4 January 2012 - 24 U 90/10, juris
BGH - Decision of 18 September 2013 - I ZR 29/12, GRUR 2013, 1247 = WRP 2013, 1593 - Buchungssystem I
ECJ - Judgment of 15 January 2015 - C-573/13, GRUR 2015, 281 = WRP 2015, 326 - Air Berlin/Bundesverband
Source: Press release of the BGH
Goldberg Attorneys at Law 2015
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law