Court of Justice of the European Union: The Regional Court, Frankfurt am Main referred a case to the European Court of Justice (“ECJ”) Third Chamber for a preliminary ruling concerning the interpretation of Articles 7(3) and Article 8(1)(a) of The Air Passengers Rights Regulation (Regulation (EC) No 261/2004) (“Regulation”) establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. The coram comprising of K. Jürimäe J., K. Lenaerts J., N. Piçarra J., N. Jääskinen J. and M. Gavalec J., held that air carriers may offer vouchers in place of cash for reimbursement.
Background
A passenger flying with TAP Air Portugal, made reservation for a connecting flight between Brazil and Germany, via Portugal. The flight was cancelled by TAP Air (“the air carrier”).
The air carrier had published a procedure on their website for initiating reimbursements for their cancelled flights. The passengers were offered a choice in between the immediate reimbursement in the form of travel vouchers through filling in a form, or reimbursement by other means, requiring prior intimation with the carrier to examine the case. The passengers were required to accept the conditions of acceptance (available only in English), provided that should a passenger choose a travel voucher, they will be unable to choose reimbursement through monetary means.
According to the air carrier, the concerned passenger sought reimbursement through a travel voucher, and thereby received one corresponding to the price of the original ticket together with a supplement, via email. The passenger assigned her rights vis-à-vis the air carrier to Cobult, which requested the latter to reimburse the price of the cancelled flight in monetary form within a period of 14 days.
Upon the air carrier’s refusal to make the reimbursement requested, Cobult brought proceedings before the competent first-instance court, which dismissed its application, holding that the rights of the assigning passenger had been extinguished by the reimbursement by the travel voucher. Following which, Cobult brought an appeal against that judgment before the Regional Court, Frankfurt am Main, Germany (the “referring court”).
Referring court:
The Court was uncertain about the interpretation of Article 7(3) of Regulation No 261/2004, under which the ticket can only be reimbursed by a travel voucher ‘with the signed agreement of the passenger’. It specifically raises the issue of the scope of the concept of ‘signed agreement of the passenger’ to assess whether the procedure for reimbursement laid down by TAP Air Portugal through its website complies with that provision.
The Regional Court, Frankfurt am Main decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling.
Issue
The question before the ECJ was, whether Article 7(3) of the Regulation must be interpreted in such a way whereby a signed agreement of the passenger on the reimbursement of the cost of the ticket with a travel voucher where the passenger opts such voucher through the website of the air carrier receivable via email, while foregoing a subsequent refund of the cost of the ticket in monetary form that shall only be claimable through self-contacting the air carrier?
ECJ Judgment:
The Court read Article 8(1)(a) of the Regulation with Article 5(1)(a), wherein, in the case of cancellation of a flight, the passenger has the right to reimbursement, within seven days of the full cost of the ticket at the price at which it was bought.
The Court further highlighted Article 7(3), that stipulates that the reimbursement is to be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.
The Court said that it is evident through the language of Article 7(3) of the Regulation read with Article 8(1)(a) that the EU legislature provided a framework for the procedure of reimbursement in form of a sum of money, upon a flight cancellation. Au contraire, reimbursement in travel vouchers is a subsidiary means of reimbursement, being subjected to the supplementary condition of the ‘signed agreement of the passenger’.
The Court thus held, referring to Recital 20 of the Regulation that, the air carrier must provide passengers with the necessary information required to enable them in making an effective and informed decision regarding the exercise of the right to assistance as provided under Article 8(1), without the enjoyment of that right to reimbursement requiring an active contribution on the part of the passenger.
Emphasizing the duty to provide information borne by the operating air carrier, it was held by the Court that the concept of the ‘signed agreement of the passenger’, means that the passenger has been able to make an effective and informed choice and, accordingly, to give free and informed consent to the reimbursement of the cost of their ticket by a travel voucher rather than by a sum of money.
Therefore, the air carrier must provide the passenger whose flight has been cancelled with clear and full information on the various means of reimbursement of the cost of his or her ticket. Per contra, in the lack of such information with the passenger, they should be regarded as being able to make an effective and informed choice and, accordingly, to give free and informed consent to reimbursement by a travel voucher.
Thus, a passenger cannot be assumed to have given their ‘agreement’ within the meaning of Article 7(3), where the air carrier broadcasts information relating to the procedure for reimbursement of the cost of a ticket in an ambiguous manner on their website, or in a language in which the passenger cannot reasonably be expected to understand, or even in an unfair manner, specifically by making reimbursement of the cost of that ticket by a sum of money subject to a procedure containing steps supplementary to the procedure for reimbursement by a travel voucher.
The Court, interpreting the meaning of Article 7(3) read with Article 8(1)(a), and considering Recital 20 of Regulation (EC) No 261/2004, held that the provisions must be interpreted as meaning that, in the event of cancellation of a flight by the air carrier, the passenger is assumed to have given their ‘signed agreement’ to reimbursement of the cost of the ticket by a travel voucher where they have filled an online form on the website of that air carrier, by which they chose such a means of reimbursement to the exclusion of reimbursement by a sum of money, where that passenger has been able to make an effective and informed choice and, accordingly, to give informed consent to the reimbursement of the cost of their ticket by a travel voucher rather than by a sum of money, which presupposes that the air carrier has provided to that passenger clear and full information as to the various means of reimbursement available to them.
[Cobult UG v TAP Air Portugal SA (C-76/23), decided on 21-03- 2024]
