§4.3.4 Issues relevant in particular to air transport

When advertising flight options, traders should ensure that statements regarding the availability of seats and flights (e.g. ‘last seat available’) are provided in a clear and truthful manner. Such statements include relevant qualifications, where necessary (e.g. ‘last seat available on this website at this amount’). When advertising specific prices for flight options (e.g. ‘prices starting from 19.99 EUR’), the offered price must be available in quantities that are reasonable, having regard to the scale of the advertising made. Furthermore, traders should only present offers as time-limited if they will not be available at the same price afterwards. In addition to raising concerns about professional diligence under Article 5(2) UCPD and misleading practices under Articles 6 and 7 UCPD, the above-mentioned practices could fall under prohibitions in Annex I point No 5 (bait advertising), No 7 (false or misleading scarcity claims) and No 18 (inaccurate information on market conditions or on the possibility of finding the product). A flight’s ‘main characteristics’ within the meaning of Articles 6(1)(b) and 7(4)(a) UCPD should include the existence of stop overs, the precise indication of the flight’s place of destination and estimated flight time. This is particularly relevant for airlines which sometimes organise flights from airports located at a certain distance from a big city, but use the name of that city in their marketing. In some cases, such commercial practices may mislead consumers as to the airport’s actual location and be likely to cause consumers to take transactional decisions they would not have taken otherwise. Indeed, some consumers could prefer paying a higher price in return for arriving at an airport closer to the city of destination. For example: Indicating a destination as ‘Barcelona’ when the airport is actually located in the city of Reus which is 100 km from Barcelona is likely to be considered as deceiving. On top of the requirements of Articles 6(1)(d) and 7(4)(c) UCPD to display the price inclusive of unavoidable and foreseeable fees and taxes, Article 23(1) of the Air Services Regulation (EC) No 1008/2008 provides that ‘the final price to be paid shall at all times be indicated and shall 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’. The Regulation also requires: — the indication of the final price to be broken down into components (e.g. air fare, taxes, airport and other charges and surcharges); — that optional price supplements are communicated in a clear, transparent and unambiguous manner at the start of the booking process; — that the customer’s acceptance of optional price supplements must be on an ‘opt-in’ basis. The Court has clarified that price elements that are unavoidable and foreseeable under Article 23(1) include passengers’ check-in fees whose payment cannot be avoided because there is no alternative method of checking-in free of charge, the VAT applied to fares for domestic flights, and administrative fees for purchases made by means of a credit card other than that approved by the air carrier. By contrast, optional price supplements include passengers’ check-in fees whose payment can be avoided by using a free check-in option and the VAT applied to optional supplements relating to domestic flights (403). Where travel service providers who market their services online breach the CRD or the Air Services Regulation, aspects of the infringing practices that are not specifically regulated by Articles in these sector-specific legal instruments could be considered ‘unfair’ under the UCPD to the extent that they are likely to cause the average consumer to take a transactional decision they would not have taken otherwise. This must be assessed on a case-by-case basis. For example: — A trader uses pre-ticked boxes or offers additional services in an unclear or ambiguous manner by hiding the possibility not to book any further services or by making it difficult for consumers not to select the additional services. By doing so, the trader could cause consumers to accept additional services which they would not have chosen otherwise. — The price of flight tickets does not in most cases include the price of travel insurance. The practice where consumers who do not wish to buy travel insurance are required to click on the ‘no insurance’ option when booking a flight ticket is likely to fall under Article 22 of the Consumer Rights Directive and Article 23(1) of the Air Services Regulation. Even before the entry into application of the Consumers Rights Directive, some national authorities had taken action against such practices under the UCPD. Similarly, the practice where consumers who do not wish to purchase travel insurance are required when booking a flight ticket to select a ‘no insurance’ option hidden among a list of potential countries of residence had been considered as unfair because it was incompatible with professional diligence (Article 5(2) UCPD) or misleading (Article 6 or 7). The information requirements of the Air Services Regulation qualify as material information under Article 7(5) UCPD. They add to the UCPD requirements under Article 7(4) as regards information about the total price of the flight ticket including whether consumers need to pay a development fee at the departing/arriving airport. In addition it should be recalled that, as discussed in section 1.2.1, where sector-specific or other EU law is in place and its provisions overlap with the provisions of the UCPD, the corresponding provisions of the lex specialis will prevail. Information about mandatory fees to be paid after the booking process, for instance directly at the airport (e.g. development fee levied for all passengers departing from certain airports e.g. in Ireland and England) must be indicated and should be prominently displayed by the transport carrier or the travel agent at the start of the booking process. If airlines or intermediaries selling flight tickets link the cost of the payment surcharge to the means of payment used, the initial price should include the cost of the most common method of payment and, as clarified the Ryanair case (404), the administrative fees for purchases made by means of a credit card other than that approved by the air carrier. When such surcharges cannot be calculated in advance, consumers should be properly informed about the manner in which the price is calculated or about the fact that they ‘may be payable’. For example: If paying with an airline’s loyalty card incurs a cost of EUR 1,5, while paying with a credit card costs EUR 6, the price indicated in the invitation to purchase and at the start of the booking process should include the price of the credit card. Moreover, most consumers will probably not be able to pay with the airline’s loyalty card. In addition, Article 19 of the CRD prohibits traders from charging the consumer fees for using a particular means of payment that exceed the cost borne by the trader for the use of such means. This should apply to all kind of fees which are directly linked to a means of payment, regardless of how they are presented to consumers. For example: Fees referred to as administration, booking or handling fees, which are commonly used in the online ticketing sector, especially by airlines and ferry companies, and also in online sales of tickets for events, should be covered by Article 19 if they can be avoided by using a specific means of payment. Article 23(1) of the Air Services Regulation requires that air fares and air rates available to the general public include the applicable conditions when offered or published in any form. The Court also emphasised in the Air Berlin case (405) that Article 23(1) of the Air Services Regulation requires online booking systems to display to consumers the final price to be paid whenever prices of air services are shown. Likewise, information concerning the luggage policy, including the hand luggage allowance, luggage size and all applicable fees, should also be prominently displayed. Any additional cost or fee in that regard must be clearly indicated (406). Changes to pre-existing luggage policies must be carefully communicated to consumers in order to avoid misleading them under in particular Article 7(1), (4) and (5) UCPD. An average consumer may have reasonable expectations on what the luggage policy entails, such as the inclusion of standard hand luggage that meets reasonable requirements in terms of its weight and dimension in the price of the ticket (407). For example: A national court ordered an airline to refund a customer who was charged for taking a carry-on bag without a special ticket, and told the airline to remove the clause from its terms and conditions. The airline only allowed small bags into the cabin if they can be stowed under the seat in front, but larger bags of up to 10 kilos require a luggage fee, or a fee-paying priority boarding pass. The court ruled that the hand luggage policy generates a serious imbalance in the parties’ contractual relationship to the detriment of the consumer (408). Under Article 23(1) of the Air Services Regulation, optional fees for seat selection (the alternative being random allocation of seats to different parts of the aircraft) should be communicated in a clear, transparent and unambiguous way at the start of any booking process. Under the UCPD, where traders advertise a specific flight ticket, they should also indicate the cancellation policy that applies to that ticket (e.g. whether there is no refund or whether it is possible to change tickets). This is particularly relevant where administrative fees charged by the air carrier/travel agent to the consumer for cancelling the ticket amount to the actual cost of the ticket itself. When cancellation fees charged by airlines are even higher than the price paid for the ticket, claims by the trader that cancellation is possible are likely to be misleading. Also, procedures put in place should not make it difficult to reclaim taxes and charges no longer due. Otherwise, this could amount to a lack of professional diligence within the meaning of Article 5(2) UCPD and an aggressive practice under Articles 8 and 9, in particular Article 9(d) UCPD. In case of flight cancellations by the airline, the latter must provide passengers with clear information about the applicable passenger rights under the Air Passenger Rights Regulation (EC) No 261/2004, and the relevant procedures that must be followed by the consumer. The failure to provide this information in a timely and accurate manner could amount to a lack of professional diligence under Article 5(2) UCPD and may therefore be considered misleading under the UCPD. For example, information on applicable rights and procedures should be presented in a clear way giving the same prominence to the different statutory options the passenger has in the event of a flight delay/cancellation. It should be communicated to the passenger in a timely and user-friendly fashion, for example in the form of a hyperlink in email or SMS communication. For example: — In 2017, several enforcement authorities took action in response to mass flight cancellations by an airline as a result of crew and air traffic strikes. The airline was found to act in a misleading manner when informing the passengers of the cancellations by not providing complete and adequate information on the consumers’ rights to compensation pursuant to Regulation (EC) No 261/2004. The airline was requested by several authorities to inform consumers of the relevant rights arising from the cancellation and the procedures to be followed (409). — In 2020, the Commission provided additional guidelines on EU passenger rights as well as a Recommendation on vouchers in response to massive cancellations due to the COVID-19 pandemic (410). In case of cancellations by the airline, the transport provider must reimburse or re-route the passengers. Reimbursement in the form of a voucher is subject to the agreement by the passenger. If passengers themselves decide to cancel their journeys, reimbursement of the ticket (in cash or in the form of a voucher) is not regulated by Regulation (EC) No 261/2004 and therefore depends on the terms and conditions of the air carrier (411). — In 2021, a consumer authority fined three airlines EUR 8,4 million in total due to breaches of the UCPD in the context of the COVID-19 pandemic. The airlines were found to breach the professional diligence rules when continuing to cancel flights for reasons of health emergency in periods when travel restrictions were lifted, proceeding to issue vouchers rather than offering passengers reimbursement for their tickets. The authority also found that the airlines provided misleading information and omissions, including through the use of procedures that encouraged or forced consumers to choose vouchers over reimbursement in money. Some of the airlines fined were found to also impose additional obstacles on voucher holders, such as requiring them to call a telephone number to redeem their vouchers (412). — The CPC network of consumer authorities launched a coordinated survey of a number of airlines in 2021 in respect of their flight cancellation and reimbursement practices during the COVID-19 pandemic, identifying problematic industry-wide practices. In particular, the CPC network found that reimbursement was often presented to consumers less prominently than vouchers and airlines were not proactively informing affected consumers about their rights, including information required under Regulation (EC) No 261/2004 (413). Practices related to corrections of names on tickets should be transparent and proportionate, taking into account the circumstances of the case. In addition to concerns regarding the misleading nature of the practices, the imposition of additional fees may in some cases amount to an aggressive practice under Articles 8 and 9 in particular, for example, the consumer is only informed about such fees at the airport, with the flight imminently leaving. If the practice stems from contractual terms, the Unfair Contract Terms Directive may be applicable (see section 1.2.4). For example: A consumer authority fined an airline for the application of a penalty to consumers - initially consisting in payment for a new ticket to be able to use the service already purchased and, subsequently, a fee of EUR 50 per route - in cases of incorrect registration of the passenger’s name at the time of booking, specifically for cases of omission of any middle names or surname or in the case of alteration/lack of some letters. The airline did not provide any advance information regarding the consequences of incomplete registration and some of the discrepancies were due to the airline’s own system, e.g. limited space available for inserting all names/surnames of passengers or misalignment between operating interfaces with websites of intermediaries (414).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07