18 September 2014: CJEU's judgment in the case Vueling Airlines (C-487/12)
The CJEU agreed today with the suggestion given by the AG Bot (see our earlier post: Airlines may freely determine checked-in luggage costs) to leave it to the market to determine whether the cost of the checked-in baggage would be included in the air transport service charge or whether it would be charged separately by the airlines, as an optional supplement. Therefore, the provision of the Spanish law that prohibits air carriers from charging for checking in passengers' baggage in the form of an optional price supplement is not in compliance with the European consumer law. The CJEU reached this conclusion upon determining that the purpose of the Regulation No 1008/2008 is to ensure information and transparency with regard to prices for air services. (Par. 32) Even if the Regulation does not specifically mention prices to be paid for carrying baggage, it has to apply to them, as well, so that it was possible to effectively compare prices for air services. (Par. 33) The Regulation distinguishes between two different charges and sets different rules for them depending on whether the price to be paid constitutes an unavoidable and foreseeable item included in the price of the air service or whether it is an optional price supplement in respect of a complementary service. (Par. 37) The CJEU mentions that the most recent business models of airlines demand that a different price could be set for an air ticket, depending on whether the passenger wants to travel with just his carry-on or check-in baggage. Many consumers would prefer to travel light if that saves them some money on their travel expenses. It is not longer feasible, therefore, to expect from the airlines to accept all check-in baggage without incurring supplementary charges. (Par. 38) This means that the price to be paid for the carriage of air passenger's checked-in baggage constitutes an optional price supplement (Par. 39) contrary to the hand baggage (Par. 40).
The CJEU ascertains, however, in its judgment that such an optional price supplement would need to remain optional - that is it should only apply to the air transport service on an opt-in basis, the choice whether to opt-in should be given to consumers at the beginning of the booking process before they become invested in the particular service, and it should be drafted in a transparent, unambiguous way so that consumers are clearly informed about this financial burden. (Par. 46 read together with the opinion of AG Bot)