The issue submitted to the Court of Justice on the merits of case C-­‐573/13 originated from a claim brought in the context of a dispute between Air Berlin and the German Federal Union of Consumer Organisations and Associations.

The challenge concerned the way in which air fares were displayed in Air Berlin’s computerised booking system.

The system was organised in such a way that, after selecting a date and a departure airport, one would find all possible flight connections in a summary table.

However, the final price of the ticket was displayed only for the clicked connection, and not for all connections, thus preventing customers from being able to compare such price with the prices of other connections.

The German Federal Union took the view that this practice did not meet the requirements laid down by Article 23 of Regulation (EC) No. 1008/2008, which requires transparency in the prices set for air services.

This led the German State to bring an injunctive action to cause Air Berlin to discontinue said practice. The claim was upheld at both the application and appeal  stage of the relevant proceedings.

Subsequently, Air Berlin submitted the matter to the German Federal High Court, which decided to stay the proceedings and ask for a preliminary ruling from the Court of Justice as to

  1. whether  Article  23  of  Regulation  (EC)  No. 1008/2008 must be interpreted as meaning that, during the computerised booking process, the final price to be paid must be indicated at all times when prices of air services are shown, including when they are shown for the first time; and
  2. whether, during the computerised booking process, the final price must be indicated only for the air service specifically selected by the customer or for each air service shown.

Concerning the first question, Air Berlin submitted that the words “at all times” in Article 23 do not require the final price to be paid to be indicated from as early as the first time the prices of air services are shown, but only that to be indicated after a particular flight has been selected by the customer and before the booking process is finally concluded. The above view, however, is not correct in that Article 23 of the EC Regulation provides that the final price to be paid is at all times to be indicated and is to 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. This means that the determination of the final price to be paid must be always the same, and not change depending on the time it is shown.

The final price must be clearly shown from as early as the first time the prices of air services are shown, depending on the customer’s selection.

Concerning the second preliminary question, Air Berlin maintained that Article 23 does not require the indication of the final price for each flight displayed, but for  the only flight  specifically selected by the customer.

This interpretation, however, was rejected as well, on the ground that the obligation under Article 23 to indicate the final price “at all times” applies to all forms of publication of air fares, including fares proposed for a series of air services presented in the form of a table. Consequently, indicating the final price for the only flight specifically selected is not sufficient to satisfy the obligation laid down by that provision.

In a nutshell, the Court, by the here-­‐discussed judgment determined that Article 23 of Regulation (EC) No. 1008/2008 must be interpreted as meaning that, in the context of a computerised air ticket booking system, the final price to be paid must be indicated not only for the air service specifically selected by the customer, but also for each air service in respect of which the fare is shown.

Clearly the above judgment will place air companies under an obligation to update and adjust (when needed) their computerised ticket booking and payment systems, in consideration of the primary need for consumers to be aware at all times of the actual price payable for a ticket and be able to compare the price of the service selected with the prices for other air services in respect of which the fare is shown.