The European Court of Justice has said that ticket prices that are taken into account when calculating passenger refunds under Regulation (EC) No. 261/2004 must include the cost of any additional fees taken by vendors or travel agents, unless the airline in question was unaware of the commission.

The 12 July decision came in response to a question from the local court (Amtsgericht) in Hamburg, which is hearing a claim brought by the Harms family against Spanish low-cost carrier Vueling Airlines after their flight from Hamburg to Faro in Portugal was cancelled.

While the airline didn’t dispute the Harms’ claim to a refund of the ticket price under article 8 of Regulation 261, it took issue with their reckoning of what that price was.

The family had bought their tickets via online travel agent Opodo, which invoiced them €1,108.88 but passed on just €1,031.88 to the airline, having taken a €77 commission on the sale. Unable to rule on which of the two sums should be refunded to the Harms family, the Amtsgericht referred the matter to the ECJ.

The court said that, under article 8 of Regulation 261, the air carrier in question bore the burden of reimbursing passengers whose flights had been cancelled “at the price at which it was bought”.

When considering whether a travel agent’s commission should be considered part of that price, the court noted that while Regulation 261 was drafted not only to protect passengers’ rights, but also to balance their interests with those of air carriers. As such, it was necessary to place limits on when airlines should be held liable for commission that they didn’t themselves recoup.

Article 2 of Regulation 261 defines a ticket as a physical or electronic document issued by an air carrier or its authorised agent. It follows from this, the ECJ said, that the sale of such a ticket couldn’t take place without the carrier’s knowledge. However, the court added that it would be unfair to hold the airline responsible for any element of the price that was set without the air carrier’s knowledge.

With this in mind, the ECJ ruled that when an airline has authorised a travel agent to sell a ticket for its flights, the commission charged by the agent constitutes part of the price of the ticket and is thus refundable by the airline in the event of a cancellation. Whether or not Vueling was aware of Opodo’s commission in the current case was for the Amtsgericht to decide, the court said.