In a recent judgment, the Court of first instance of Berlin (LG Berlin) fined Air Berlin for using an unfair price-adjustment clause in its contracts, in legal proceedings initiated by the Federal German Consumer Protection Association (VZBV). The judgment is appealable.
The
text of the clause is the following:
“4.1.2
Changes to the air fare after the time of contracting are permissible in the
event of changes in fuel costs, changes to or the imposition of
aviation-specific levies (taxes, charges, contributions, special levies or
other aviation-specific levies for certain services), aviation-specific
charges, emission certificate costs or exchange-rate fluctuations of at least
10% of the individual fare if a period in excess of four months has elapsed
since the time of contracting and the agreed travel date, and if the Airline notified
the booking party accordingly without delay on receipt of such information and
the Airline had no influence on such change at the time of contracting. In the
event of a seat-related increase in costs of carriage (e.g. fuel costs), the
Airline may demand payment of the increased amount; otherwise the additional
costs of carriage shall be divided by the number of the seats on the aircraft
and the resultant increase applied as a charge to each individual seat. If
charges payable by the Airline, such as airport charges, are increased, the
price of the flight may in turn be increased by the appropriate proportionate
amount. In the event of a change in exchange rates after the Contract of
Carriage has been concluded, the price of the flight may be increased in line
with the amount by which carriage has become more expensive for the Airline. A
price increase may only be demanded up to 21 days before the agreed departure
date. If the price increases applied after conclusion of the contract amount to
more than 5 % of the total flight price, the booking party is entitled to
withdraw from the contract without incurring any expense. In the event of a
reduction or cancellation of taxes, charges, or costs, the surplus amount is
refunded or deducted, as applicable. With respect to travel to or from the
U.S., increases in the airfare after contract conclusion may be imposed only
for increases in government-imposed taxes or fees provided that written consent
for such potential increases was obtained from the booking party at the time of
contract conclusion by checking the opt-in box on the booking site.”
The
Court found that the clause leads to an unacceptable reduction of the consumers’
contractual rights, in violation of the principle pacta sunt servanda. The clause foresees a price increase in case
that the airline costs increase, which favors the airline, without foreseeing a
price decrease if the airline costs sink, which would favor consumers. In addition,
the clause shifts to consumers the market risk of the airline, especially regarding
changes in the exchange rate. The fact that consumers can withdraw from the
contract if the price increase exceeds 5% plays no role, according to the
Court, because passengers may encounter significant difficulties in finding an alternative
flight for the same date against a comparable price. Furthermore, the Court
found no legitimate reason for the different terms foreseen regarding flights
to the US.
Besides,
the Court found the clause to be intransparent, too complicated and very difficult
for consumers to understand its meaning.
As a
result the Court fined Air Berlin with 250.000 €. Air Berlin has the right to
appeal the judgment.
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