The Court of Justice of the European Union has ruled that airlines must include intermediation commissions charged to passengers who purchase a plane ticket in the amount of the refund if it has occurred, whether or not the airline has explicit knowledge of the existence of that commission and its amount.
According to the court, when the airline accepts that the intermediary issues and issues airline tickets in the name and on behalf of said company, “it is necessarily assumed to be aware of the intermediary’s commercial practice of charging an intermediation commission.” This applies even in the absence of an explicit contractual clause to this effect. Since this charge is an unavoidable element of the price of the plane ticket, “it must be considered authorized by the airline. Therefore, the airline must reimburse the commission,” he adds.
The case refers to the complaint filed by several travelers who purchased flight tickets on the Opodo travel agency’s reservation portal for a round-trip flight of the KLM airline between Vienna (Austria) and Lima (Peru), which was cancelled. KLM refunded them the amount they had paid, after deducting approximately 95 euros that Opodo – authorized to issue airline tickets for KLM – had invoiced them as an intermediation commission.
The affected passengers transferred their possible refund rights to a consumer protection association. That association argued before the Austrian courts that the reimbursement of the cost of the airline tickets by the airline in question should include the intermediation commission billed to passengers, as in this case, by a travel agency that acted as an intermediary for the same airline. KLM, on the other hand, maintained that it was not obliged to reimburse the contested intermediation commission, since it was unaware of its payment and even more so of its amount.
The Austrian Supreme Civil and Criminal Court asked the Court of Justice in this regard. More specifically, said court recalled that the Court of Justice has already ruled on intermediation commissions in the context of the interpretation of the scope of airlines, considering that such commissions must be included in the amount of the reimbursement, unless they have been set without the knowledge of the airline. However, this exception, relating to the air carrier’s knowledge or lack of knowledge of the commission, could give rise to different interpretations.
More specifically, the Austrian justice asked the CJEU to interpret Regulation (EC) No. 261/2004 of the European Parliament and of the Council, of February 11, 2004, establishing common rules on compensation and assistance to air passengers in the event of denied boarding and cancellation or long delay of flights.
The CJEU considers that it is not necessary for the airline to know the exact amount of the intermediation commission. Otherwise, “the protection of passengers pursued by the Union legislator would be weakened” and the attractiveness of using the services of an intermediary would be reduced.
