Air transport. The Court of Justice rules on the concept of “signed agreement of the passenger”

On 21 March 2024, the Court of Justice handed down its judgment in C‑76/23, Cobult UG v TAP Air Portugal SA, on the interpretation of Article 7(3) and Article 8(1)(a) of Regulation (EC) No 261/2004. The request has been made in proceedings between Cobult UG (“Cobult”), the assignee of the rights of a passenger, and TAP Air Portugal SA (“TAP Air”) concerning the reimbursement of the cost of the ticket of that passenger whose flight was cancelled.

Since 19 May 2020, TAP Air has made available on the homepage of its website a procedure for initiating reimbursements for, inter alia, flights it has cancelled, so that passengers have the choice between immediate reimbursement in travel vouchers by filling in an online form, and reimbursement by another means, for example by a sum of money, provided they contact that air carrier’s customer service department beforehand, so that the latter can examine the facts.

Since a connecting flight from Fortaleza to Frankfurt am Main via Lisbon was cancelled by TAP Air, the passenger concerned requested to be reimbursed by a travel voucher, and she received one by email for an amount of almost 1700 euro, corresponding to the price of the original ticket together with a supplement. After such passenger assigned her rights with regard to TAP Air Portugal to Cobult, the latter requested that operating air carrier to reimburse the price of the cancelled flight in monetary form. Faced with TAP Air Portugal’s refusal to make the reimbursement requested, Cobult brought proceedings before the competent first-instance court, which dismissed its application. Therefore, Cobult brought an appeal before the Landgericht Frankfurt am Main (Regional Court of Frankfurt am Main; the “referring court”) which, in light of the need to interpret the relevant European legislation, decided to stay the proceedings and to ask to the Court of Justice whether Article 7(3) of Regulation No 261/2004, read in conjunction with Article 8(1)(a), must be interpreted as meaning that in the event of the cancellation of a flight by the operating air carrier, the passenger is deemed to have given her “signed agreement” to reimbursement of the cost of the ticket by a travel voucher where she has filled in an online form on the website of that air carrier, by which she chose such a means of reimbursement to the exclusion of that by a sum of money, whereas the latter method of reimbursement was subject to complying with a procedure including supplementary steps to be carried out with the customer service department of that air carrier.

According to the Court, the concept of the “signed agreement of the passenger” presupposes that the latter 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 her ticket by a travel voucher rather than a sum of money. To that end, it is for the air carrier to provide to the passenger whose flight has been cancelled, in a fair manner, clear and full information on the various means of reimbursement of the cost of her ticket. Therefore, a passenger cannot be deemed to have given her “agreement” where the operating air carrier presents, inter alia on its website, information relating to the procedure for reimbursement of the cost of a ticket in an ambiguous manner, by making reimbursement by a sum of money subject to a procedure containing steps supplementary to that for reimbursement by a travel voucher.

Marco Stillo