Going forward, companies brokering the products of others should have particular focus as to whether they have made it sufficiently clear that they act only as an intermediary, and according are not liable for the performance of contracts brokered. This is the consequence of a leading case delivered by the High Court of Eastern Denmark concerning the travel portal Goleif's duty to pay for a consumer's replacement flight following the bankruptcy of airline Cimber Sterling in May 2012.

Background

In 2012, a consumer bought flight tickets to Nice on the travel portal www.GoLeif.dk, which is owned by Den Danske Rejsegruppe (the Danish Travel Group). The return flight was with Cimber Sterling, which went bankrupt shortly prior to departure. GoLeif/Den Danske Rejsegruppe ("GoLeif") subsequently refused to compensate the consumer for the expenses for the return flight, stating that it was an intermediary only of the flight tickets and that Cimber Sterling was the consumer's direct contracting party.

Decision of the district court

In January 2014, the district court found for GoLeif in its claim that Cimber Sterling was the consumer's direct contracting party and that GoLeif was merely an intermediary of the flight tickets. The district court found that it appeared sufficiently clear that the agreement was not entered into with GoLeif but rather directly with the airlines. In that connection, the district court attached importance to the fact that in the footer of its website, in connection with payment and in its conditions, GoLeif stated that the company did not trade "in its own name".

Decision of the High Court

Contrary to the district court, the High Court of Eastern Denmark found that based on an overall assessment, the consumer could rightfully assume that the agreement had been entered into directly with GoLeif and furthermore that it cannot be assumed as generally known by consumers that travel portals are, as a main rule, merely intermediaries for the airline companies.

Among other things, the High Court put emphasis on the fact that even though it appeared from the booking flow on the website and the travel conditions that GoLeif acted as an intermediary and that GoLeif did not sell travels in its own name, it could not be assumed that the ordinary consumer based on this information alone could deduce the significance for the individual's legal position vis-à-vis GoLeif. Given this, and based on an overall assessment of the website www.GoLeif.dk, the High Court found that the consumer was justified in assuming that the agreement on the plane trip was entered into with GoLeif.

The judgment is of general public importance as it may affect 833 similar cases concerning compensation with the Danish Consumer Complaints Board having awaited the judgment of the High Court of Eastern Denmark. The Danish Consumer Ombudsman Christina Toftegaard Nielsen says after the case: "The Court has now decided that GoLeif must compensate the consumer for additional expenses for new flight tickets. It is a case of general public importance, which may be of great significance for consumers who buy flight tickets on similar travel portals."

Bech-Bruun recommends

As a consequence of the judgment, we recommend everyone carrying on activities involving the brokering of products from other companies to consumers to consider whether it appears sufficiently clearly on their online platform that the business is merely an intermediary and as such is not liable for the provider's non-performance of the agreement.