Airlines often have to struggle with the undefined legal term "one single booking". Such issues were illustrated in a recent legal dispute before the Frankfurt District Court.(1)
A booking was made on the homepage of airline A, the contractual carrier. The outbound flight was to be operated by carrier B under a codeshare agreement, and the return flight was to be operated by carrier A. The airlines had an agreement that the ticket costs would only be paid to airline B if the flight took place. However, airline A cancelled both flights relating to the booking and airline B did not receive its payment.
Knowing who their contractual partner was, the passenger approached airline A and asked for a refund. Airline A reimbursed the passenger in the form of a travel voucher. The passenger then assigned his claim (which had already been fulfilled by the voucher) to C GmbH, a company specialised in claiming reimbursement of ticket costs for cancelled flights.
C GmbH sued airline B before the Frankfurt District Court for the full reimbursement of the ticket costs of both the outbound and inbound flights.
The defendant argued before the Court that it lacked passive legitimacy and defended itself with the objection that the claim had been fulfilled by the travel vouchers. With regard to the lack of passive legitimacy, it was argued that the passenger's decision to reimburse the ticket costs had the effect of a withdrawal from the contract, and that the contract would subsequently also have to be settled under the law of obligations. Accordingly, the EU Flight Compensation Regulation(2) would not apply due to the lack of an existing contract of carriage, and thus also the lack of a confirmed booking.
In this case, however, the contract had been concluded with airline A, which is why it owed the refund according to national regulations. This is a classic case in that there was a difference between the opposing parties' claims under the law of obligations and claims under article 8 of the EU Flight Compensation Regulation. This problem has come up in case law with regard to differences between creditors – namely, the booking party and the passenger – but it has been solved differently by different courts.(3)
The defendant airline further claimed that the reimbursement of the airfare due to the issuance of the travel voucher led to the lapse of the claim.
Airline A was called into the dispute. However, it did not appear before the Court to fight on the defendant's side.
The Court opined that the booking was a single booking. As a result, the claim could be asserted against both air carriers. The refund process could not be passed on to the consumer. Furthermore, the defendant had not sufficiently argued that the voucher had been accepted voluntarily and the written form requirement had not been sufficiently explained. A reference to the fact that the defendant could not explain the process, which was beyond its perception, was again rejected with the well-known argument of consumer protection.
The Court's opinion is devoid of any dogmatic principles and is purely intended to not cause the passenger any disadvantages by passing on the refund process. This has the effect of awarding two claims and thus a double assertion.
This assumption alone is incorrect in the case at issue, as it was not the passenger himself who had asserted his claim, but instead a debt collector. The passenger no longer had anything to do with the proceedings in this case; he no longer had the right to claim.
Furthermore, the question arises: as the passenger had been aware of to whom he had to turn for his refund, what disadvantage would he have suffered? After the cancellation, the passenger had deliberately turned to airline A, his direct contractual partner. Whether the passenger had actually been aware that airline B was to operate a partial flight under the codeshare agreement is doubtful.
Why air carrier B should now reimburse costs for tickets that it did not receive itself is not apparent, at least under national contract law regulations. It should have been obvious that the interpretation made would lead to completely absurd results.
According to the Court, the passenger could assert his claims against both air carrier A and air carrier B. The passenger had originally had only one contracting party, and was not entitled to claim against the other under national law. The Court decided that the passenger could assert his claims twice, which is what actually happened in the present case. This results in overcompensation, which is undesirable to the German legislature. This is also not covered by the EU Flight Compensation Regulation, and cannot be justified from the point of view of consumer protection. Compensation for damage should place the person who suffered the damage in the same position in which they would be had the damaging event not occurred, not into a better one. The Court also failed to consider the fact that air carrier B:
- had received no airfare;
- had not been involved in the booking and cancellation process; and
- had had no influence on the refund process.
A refund was, therefore, not possible. For a refund, a payment would have had to have been made first. This was indisputably not the case.
The proceedings here also illustrate considerable procedural problems. It was, for example, not possible to show how the voucher reimbursement took place at airline A. Likewise, it was not possible for the defendant to make a substantial submission in this regard and prove that the passenger had voluntarily requested the voucher.
How should air carrier B now prove that a fulfilment effect has actually occurred through the sending of the voucher to the passenger? After all, it is only possible to make statements about facts that are the subject of a party's own perception. Airline B has no knowledge of how the reimbursement process at airline A works.
In this respect, this case study vividly shows how case law oriented towards results – already wrong in its basic assumption – can increasingly soften national law until it consists only of consumer- and passenger-protection catchwords. Even in legal education, great importance is attached to the dogmatic interpretation of legal texts, as this serves legal certainty and the predictability of judicial decisions. Why legal dogmatism was not applied here in the interpretation of the EU Flight Compensation Regulation remains unanswered.
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]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.
Endnotes
(1) District Court Frankfurt am Main, Ref 31 C 2402/21 (74).