According to article 15(1) of EU Regulation No. 261/2004, obligations towards passengers may not be restricted or excluded – in particular, neither by deviations nor by restrictive provisions in the contract of carriage. This article illuminates the impact of this principle with reference to a decision of the Düsseldorf District Court.(1)
The passenger booked a flight through an online travel agent. The flight was cancelled due to the covid-19 pandemic. After the cancellation of the flight, the passenger demanded a reimbursement of the ticket expenses from the travel agent.
Based on the passenger's application to the travel agent, the airline reimbursed the airfare to the credit card of a well-known bank account in December 2020. The credit card belonged to the travel agent. The passenger made no further effort to obtain a refund; the process could easily have been concluded if he had viewed his account with the travel agent and cashed the refund there.
However, he did not follow this procedure. Instead, he assigned his claims to a collection agency in April 2021. The collection agency pursued the claims against the airline in court.
In court, the airline argued that the claim had expired through fulfilment. During the covid-19 pandemic, air traffic almost came to a stop, and airlines were confronted with a large number of refunds. The short deadline of article 8(1) of EU Regulation No. 261/2004 can only be met if a refund is made to the original means of payment (in this case, the account of the travel agent). The airline was not aware of any additional account details. In fact, a refund to the original means of payment was possible and regulated in the airline's general terms and conditions (GTC), which were effectively included in the contract of carriage.
The plaintiff (the collection agency) argued that such a refund would violate article 15(1) of EU Regulation No. 261/2004 and, therefore, the refund to the agent did not constitute fulfilment of the claim, since the passenger must be reimbursed under article 8(1) of EU Regulation No. 261/2004.
The agreement – made unilaterally by the plaintiff – on which the relationship between the plaintiff and the passenger was based contained a similar provision. According to this agreement, the passenger would receive payment from the airline after the deduction of a fixed commission, which would go to the plaintiff.
According to article 8 of EU Regulation No. 261/2004, only the passenger is entitled to reimbursement of the air fare, not a third party. The Court held that the fact that the passenger himself had called in a travel agent did not imply the granting of an authorisation to receive money for a refund. According to the Court, the defendant was obliged to pay the passenger, and not a third party. It was therefore within its own sphere of influence to enquire about the passenger's payment details. The Court further held that the defendant could not rely on its GTC in this respect, as the power of attorney to receive money from a third party is purely based on clauses that are constituted as unreasonably disadvantageous for the defendant's contractual partner.
The Court did not consider the fact that the air fare had already been refunded to the original means of payment two years ago, and that the refund could have been transferred to passenger by cashing the money to an account of his choice.
Even if the Court's findings are assumed to be appropriate, they do not support the decision made. It was not only the airline that limited the rights of the passenger "purely by clause"; the plaintiff did so as well, as the GTC of the collection agency also contained a clause wherein the refund would not be made to the passenger himself, but to the collection agency. If article 15 of EU Regulation No. 261/2004 is interpreted as per the Court's understanding, the interpretation must also apply to contracts of assignment that deal with the contract of carriage or claims arising from it. Accordingly, the contract of assignment would also be invalid and, moreover, the fee agreement between the plaintiff and the passenger would violate the rights of passenger.
Consequently, due to a lack of active legitimation by the plaintiff, the right to sue would have been refused and, subsequently, the action to claim rejected. Since these considerations were only applied to the airline, but not to the plaintiff, the question arises as to whether the decision is based on extraneous considerations. It is not clear why article 15(1) of EU Regulation No. 261/2004 was only decisive with regard to the airline.
For further information on this topic please contact Stefan Weckenmann at Arnecke Sibeth Dabelstein by telephone (+49 69 97 98 85 0) or email ([email protected].com). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
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