On 23 April the CJEU issued a judgment in the case Ryanair (C-28/19) discussing how airlines structure and present their flight prices. Specifically, the Italian Competition and Market Authority (AGCM) found Ryanair guilty of various unfair commercial practices regarding presentation of price charges and imposed fines on Ryanair. The question was whether Ryanair needed to include in the prices published on its website certain costs, which it considered optional, such as online check-in fees, the VAT, administrative fees for payments with a credit card. The AGCM did not find these fees optional, but rather compulsory, which would change the way Ryanair had to present them to passengers (para 9).
Regulation No 1008/2008 on common rules for operation of air services determines in its Article 23 what elements of air fare, fees, surcharges should be presented to passengers, as well as when and how these should be shown. The CJEU previously decided in Air Berlin case (C-290/16, see our comment) that the additional, compulsory fees and surcharges should be presented to passengers from the first time the price for air services is shown, although they should not be included in the air fare (para 18). ebookers.com Deutschland case (C-112/11, see our comment) illustrated how to differentiate between compulsory and optional price supplements (para 20). Optional fees may be displayed to consumers at the very beginning of the booking process (thus later than when the price is shown for the first time to passengers) (para 21).
In the given case, the CJEU decides that online check-in fees might be considered compulsory only if the air carrier does not provide another method of check-in to passengers (e.g. at the airport) OR if all check-in methods (whether online or offline) must be paid for (para 25). The required moment of the display of the VAT is more complex, as it depends on the service to which the VAT applies. The VAT on air fares is compulsory, and thus should be shown to passengers from the first time the price is displayed, but in a separate way, whilst the VAT applicable to optional services is unforeseeable (depends on whether passengers choose these services) and thus may only be shown during the booking process, when the optional service is selected (paras 30-31). These rulings are quite straightforward and not unexpected.
A bit more exciting was the decision regarding fees applicable to passengers paying with a credit card. Whilst undoubtedly foreseeable, the question was whether they could be seen as unavoidable and therefore qualify as compulsory fees. Ryanair provided passengers with an option to pay by Mastercard prepaid without the need to incur additional charges, thus they could claim that the administrative fee was avoidable if consumers chose a different payment method (para 33). The CJEU does not accept, however, this reasoning, as 'the option offered to the consumer is subject to a condition imposed by the air carrier, by reserving the free nature of the service in question for the benefit of a restricted class of privileged consumers and by requiring, de facto, the consumers who do not form part of that class to either refuse the service that is free of charge, or not to proceed with their purchase immediately and to undertake steps that may entail costs in order to satisfy the condition required, at the risk, once those steps have been completed, of no longer being able to benefit from the offer or of no longer being able to benefit from the price originally indicated' (para 33). It does not matter also whether the majority of consumers have Mastercard prepaid cards (para 35). To clarify, this does not prohibit air carriers from charging administrative fees for credit card payments, but rather forces them to disclose such additional charges from the very first moment the flight price is shown to consumers.
