Vouchers, an acceptable reimbursement? - CJEU in C-76/23 (Cobult)

On March 21, the CJEU published the most recent judgment interpreting provisions of Regulation 261/2004 on air passenger rights in the case Cobult (C-76/23) concerning the possibility of reimbursing passenger's ticket cost through a voucher.

By Lu Lettering from Pixabay  

Many of our readers may have experienced a flight cancellation over the past couple of years, not limited to Covid-19-related causes. In case of a cancellation passengers may choose to have their cancelled flight rescheduled (re-routing) or have their ticket costs reimbursed, pursuant to Article 8 of the Regulation 261/2004. Reimbursement could happen via various means, including via a voucher but the latter only upon passenger's "signed agreement", pursuant to Article 7(3). Thus the reimbursement by a travel voucher "is presented as a subsidiary means of reimbursement" (para 20). 

In this case, TAP Air Portugal invited passengers to fill an online form to claim reimbursement of ticket costs, which would lead to them being immediately compensated in travel vouchers. The online form included conditions of acceptance, with text clarifying that acceptance of a travel voucher precluded further reimbursement claims in other forms. An alternative way of reimbursement was available, if passengers contacted their customer service department and allowed them to examine case facts (paras 8-9). 

The CJEU does not exclude a possibility that passengers could have provided a 'signed agreement' in an online reimbursement form. A 'signed' agreement does not need to include the consumer's signature on an online form they are submitting to the air carrier for reimbursement (para 34). However, certain conditions would need to be met. First, passengers need to be able to give their free and informed consent to reimbursement via a travel voucher (para 22). This will require air carriers to provide passengers with "clear and full information on the various means of reimbursement" of ticket costs (para 30). This condition will not be fulfilled if e.g., air carrier (para 32):

• leaves any ambiguity on its website, 
• presents partial information, 
• writes information in a language that passengers may not be proficient in (e.g. information in this case was given only in English - would this be seen as compliant if many passengers were Portuguese-speaking?), or 
• if the procedure for claiming monetary payment is unfair if compared to the procedure of claiming travel vouchers e.g. because it contains additional steps.

"(...) the addition of such supplementary steps is liable to render reimbursement by a sum of money more difficult to obtain, and thus to upset the relationship between the two means of reimbursement" (para 33) - this is an interesting conclusion by the CJEU, which follows recent developments in other areas of EU consumer law. For example, when assessing fairness of cancellation process of online subscriptions, we would also check whether there were additional steps included, which made the process more complex than when subscription was concluded.

Ex officio and package holidays - CJEU in RTG v Tuk Tuk travel SL (C-83/22)

 Dear readers,

do you remember when the Package Travel Directive (2015/2302) and package travel rules all of a sudden seemed very current, back at the heights of the pandemic, after having been mocked for years as the 2015 rules for 1980s holiday-making? Well, in a reminder that we all sit in our little bubbles :), it turns out consumers may not have noticed all the fuss in the legal community after all - but ex officio is there to make courts watch. 

Here's the story: yesterday the CJEU published its decision in RTG v TUK travel SL, which concerned a refund claim by a consumer who had planned and cancelled a trip to a faraway location in 2020. When trying to get his money back, the consumer was informed by the travel organiser that they would only be able to recover a very tiny sum. Subsequently, he sued for recovery claiming the contract was terminated due to force majeure, demanding ca 75% of the original sum - in acknowledgement of what the consumer thought were reasonable expenses incurred by the organiser. 

The national court seised with the case had its quandaries with the claim: on the one hand, the judge knew that the Package Travel Directive's article 12(2) entitled the consumer to a full reimbursement in cases like the one at hand; on the other hand, rules of Spanish civil procedure did not allow the court to modify the consumer's claim. The Court asked the parties to clarify - had the trader in fact informed the consumer, at the moment of concluding the contract, that he had a right to termination without consequences if the trip had to be cancelled? Apparently they had not. 

I will not discuss here the first question asked by the court, which rested on a misunderstanding of the text of the directive. The second question, however, in essence asked - to what extent are courts required to apply the Package Travel Directive ex officio? 

The CJEU gave a reasonably helpful answer to this question. In essence, national courts in similar situations will have to ex officio examine whether the rules in the Directive have been complied with, on the basis of the information available within the procedure. If the Court ascertains a violation - like, in this case, of article 12(2) - it will allow the consumer to amend their claim. Courts are not required or allowed, however, to go on and apply the remedy ex officio "rewriting" the consumer's claim without further ado. 

This is a somewhat systematically ambitious judgement to the extent that the CJEU (para 54-57) ventures into expressly translating previous case-law into a series of requirements without which ex officio cannot take place:

• the court must have a judgment pending about the specific contract at hand brought by one of the parties
• the involved provision (right to terminate) must be relevant to the object of the dispute as identified by the parties
• the court must have all the necessary elements available and
• the consumer must not have expressly objected to the application of the provision at hand. 

The first three requirements appear taken almost verbatim from the CJEU's previous decision in Lintner (C-511/17 - see our comment here), concerning unfair terms; the last one also seems to reflect case-law in the same area, and namely Dziubak (C-260/18 - see our comment here). 

Different to many ex officio cases, this case did not concern an absentee consumer - only one who had gone to court without a lawyer and maybe therefore (and because of the trader's failure to comply with consumer protection law) had not formulated their best possible claim. Also contrary to Duarte Hueros (C-32/12 - see our comment here), this consumer had in fact formulated a successful claim - but one that was not as advantageous as the one that he was allowed under consumer law. In this respect the decision is both far-reaching - it's not obvious that the consumer would have not received effective protection without ex officio, so the "public order" reason for control seems to feature prominently - and rather modest in not prescribing an outcome (which seems to make it less of a public order reasoning). In any case, this being Friday afternoon, I will say that it's not particularly easy to feel in this case for the trader who had actively tried to mislead the consumer as to his rights. Not nice of you, Tuk Tuk travel!

Costs of repatriation flights during Covid-19 not covered by Regulation 261/2004 - CJEU in Austrian Airlines (C-49/22)

On Thursday, June 8th, the CJEU issued a judgment in the Austrian Airlines case (C-49/22). The national court asked for help with interpreting Articles 5 and 8 of Regulation 261/2004 on air passenger rights regarding assistance that operating airlines need to offer passengers of cancelled flights, as well as passengers' rights to reimbursement and re-routing. 

Facts

Image by Stephen Cruickshank from Pixabay     

Passengers in this case were stuck on a beautiful island of Mauritius, when Covid-19 led to cancellation of their return flight. The airline did not inform them directly thereof, despite having their contact details. When they heard about the cancellation from their travel agent (a day later), they managed to arrange for a return flight home via the Austrian consulate. Ironically, the repatriated flight was with Austrian Airlines as well, and took place at the time their original return flight was scheduled. As the passengers were asked to contribute to the cost of the repatriation flight, they are trying to claim this amount back from Austrian Airlines. The claim is that the airline failed to organise re-routing of passengers, which they had to arrange and pay for themselves. 

Repatriation flight not a re-routed flight

The CJEU first considered whether the repatriation flight could be considered a re-routed flight, for which organisation and cost Austrian Airlines would need to take responsibility. The short answer is: Repatriation flight does not qualify as a re-routed flight. Despite Regulation 261/2004 not defining a re-routed flight (para 25), and everyday language suggesting that this notion would be broadly interpreted (para 26), the CJEU highlights the need for the 'commercial nature' of a re-routed flight (para 29). This need stems both from the legal basis for the adoption of Regulation 261/2004 and some of its provisions referring to concluded contracts and fee-paying passengers (Art. 2(b) and 3(3)). Sensibly, the CJEU stresses that as the repatriation flight is not commercial in nature, it may differ from commercial flights in terms of available services and conditions on board, and would not be in the discretion of the operating air carriers to offer to passengers (paras 31-32).

No EU entitlement to reimburse costs of a repatriated flight

May a passenger claim repatriation costs back from the operating airline of a cancelled flight? Unsurprisingly, this would not fall within the scope of the reimbursement provided for in Article 8 Regulation 261/2004, which specifies the passengers' right to claim back costs of the ticket for the parts of the journey not made (paras 40-41). Although, Art. 12 Regulation 261/2004 allows passengers to claim 'further compensation', assessed on an individual basis, from the airlines but only provided that national or international law gives them such a claim (para 36). The CJEU stresses, however, that Article 8 by listing various rights of passengers (reimbursement or re-routing) implies that the air carrier has an information duty about these rights, which only when fulfilled would lead to passengers being able to effectively exercise their rights (paras 43-44). If the air carrier fails in this information duty, which forms part of its obligation to offer assistance to passengers, the passenger is entitled to 'reparation in kind' (para 48). This will be limited to what 'proves necessary, appropriate and reasonable to remedy the shortcomings of the operating air carrier' (para 49).

It is then unlikely that passengers could use Regulation 261/2004 for claiming costs of their repatriation back from the airlines whose flights were cancelled due to Covid-19. Even if the airlines breached their obligations under EU law (to inform about flight cancellation, about passenger rights in the even of cancellation, offer assistance, reimburse part of the travel costs), the compensation claimed would aim to compensate for damages arising from this breach rather than be related to costs of the repatriated flight.

Knowledge is key: judgment in Joined Cases C-698/18 and C-699/18 Raiffeisen Bank and Société Générale

Earlier this month, the Court of Justice of the European Union gave judgment in Raffeisen Bank and Société Générale, two joined cases from Romania on limitation periods and Directive 93/13/EEC. This is not the first time we write about this topic; see e.g. our blog on Cofidis II, where it was observed that limitation periods as such are not necessarily incompatible with the principles of equivalence and effectiveness in EU law.[1] But they can be, as the CJEU's judgment of 9 July 2020 demonstrates, where they prevent consumers from claiming reimbursement of amounts paid on the basis of unfair terms in a credit agreement.

Source: wikipedia.org

Earlier case law of the CJEU reveals that knowledge or awareness on the part of consumers of their rights plays a crucial role in the assessment of cases on limitation periods.[2] Raiffeisen Bank confirms this.The CJEU reiterates that reasonable time limits for bringing proceedings, laid down in the interests of legal certainty, do not make it practically impossible or excessively difficult as such for consumers to exercise their rights conferred by EU law, if such time limits are sufficient in practical terms to enable them to prepare and bring an effective action. Under the rules at issue in Raiffeisen, however, a three-year limitation period started to run from the time when the contract - here: a credit agreement - had been performed in full. That is when the consumer was presumed to have known of the unfair nature of one or more unfair terms of that agreement. According to the CJEU, it is nevertheless possible that the consumers involved are not aware of this, which means the limitation period is likely to have expired before they can take action. This runs counter to the principle of effectiveness. Moreover, performance of the contract does not retroactively alter the fact that the consumer was in a weak position at the time it was concluded. The protection of Directive 93/13 is therefore not limited solely to the duration of the performance of the contract in question.

Under Romanian law, the unenforceability of unfair terms is equated with absolute nullity, the effect of which is restitutio in integrum. The limitation period normally begins to run when the court establishes the cause of action, not on the date of full performance of the contract. The CJEU holds that such a difference in treatment of consumers cannot be justified on grounds of legal certainty. Thus, the rules appear to run counter to the principle of equivalence as well.

In Case C-698/18, the action for reimbursement was brought within three years after the agreement had expired. The CJEU's judgment suggests that this does not matter; it is inconceivable that a limitation period would expire when the consumers involved are not even aware of the unfair nature of the terms of the agreement.
In Case C-698/18, the action was brought 11 years after the agreement had expired. But the agreement was concluded in 2003, i.e. before Romania's accession toe the EU in 2007. Thus, the CJEU did not have jurisdiction.

An important difference between Raiffeisen and Cofidis II is that in Cofidis, the consumer was the defendant, not the claimant. In that case, consumers should not lose their rights merely because a claim against them is brought after expiration of a limitation period. Again, what is decisive here is the risk that they have never been aware of their rights before they were able to invoke them. Knowledge is key.


[1] See also our blog on OPR-Finance. 
[2] See further this contribution by Daniël Stein, available only in Dutch. 

Vouchers everywhere? News from Germany

While the Commission clashes with Member States over airlines' vouchers-in-lieu-of-reimbursement policies (see our blog), similar approaches seem to be taking hold also in other areas of economic life and contracting.

Yesterday, remarkably, the German Parliament has passed legislation retroactively depriving buyers of event tickets and service subscribers of the possibility to claim a reimbursement in case the event or service provision they paid for are cancelled as a consequence of the pandemic. The rules apply to tickets sold before 8 March.

Exceptions are provided for consumers who can prove that the restriction would be unbearable for them due to personal circumstances. Furthermore, reimbursement will be possible when the voucher has not been spent by 31 December 2021.

Consumers will be able to use the vouchers for the same show/event or, when possible, for different ones. The idea behind the German legislator's intervention is to protect event organisers and service providers, who are known to be struggling at the moment and for whom, of course, reimbursements would entail serious liquidity issues.

The Verbraucherzentrale has criticised the choice to force vouchers upon consumers and in particular the retroactive effect of the law.