“Written agreement of the passenger” as defined by the Air Passengers Rights Regulation (Regulation (EC) 261/2004)

The Court of Justice of the European Union (‘CJEU’) recently ruled on an issue regarding the procedure for ticket refunds in case of flight cancellations, in accordance with Regulation (EC) No 261/2004 (‘Regulation 261/2004’)[1].

Below is a brief overview of this judgment.

Facts and circumstances

Regulation 261/2004 sets out the rights of air passengers in case of denied boarding, flight cancellations or flight delays.

In this case, involving a flight cancellation by air carrier TAP, passengers filed a refund request for their tickets. On TAP’s website, passengers were given the following choice:

1. Passengers could request an immediate refund in the form of a voucher, excluding the right to request cash refunds afterwards, by filling out an online form, or;
    
2. Passengers could receive a refund in another form (such as cash), on the condition that they first contacted customer service so that an investigation could take place.

Question submitted for a preliminary ruling:

In this case, passengers chose the first option but afterwards requested a refund in cash, instead. The referring court was unsure whether this approach by TAP is allowed and referred the following question to the CJEU:

“Must Article 7(3) of [Regulation No 261/2004] be interpreted as meaning that a signed agreement of the passenger on the reimbursement of the cost of the ticket with a travel voucher within the meaning of the first indent of Article 8(1)(a) of [that regulation] exists where the passenger selects a voucher of this type on the website of the operating air carrier to the exclusion of a subsequent refund of the cost of the ticket in monetary form and receives it by email, while reimbursement of the cost of the ticket in monetary form is only possible after first contacting the operating air carrier?”

Ruling of the CJEU:

Article 7(3) of Regulation 261/2004, that forms the basis of abovementioned question, reads as follows[2]:

“The compensation referred to in paragraph 1 shall be paid in cash, by electronic bank transfer, bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers and/or other services.”

The CJEU first notes that the structure of article 7(3) of Regulation 261/2004 indicates that the reimbursement of the cost of the ticket is made, primarily, by a sum of money. Reimbursement in travel vouchers is presented as a subsidiary means of reimbursement since it is subject to the supplementary condition of the ‘signed agreement of the passenger’. 

Furthermore, the CJEU reiterates that Regulation 261/2004 seeks to ensure a high level of protection for passengers and consumers, by strengthening their rights in a number of situations invoking serious trouble and inconvenience. Then, the CJEU sets out that passengers whose flight is cancelled should be fully informed of their rights[3]. Passengers should, after all, be able to make an effective and informed choice as regards the exercise of the right to assistance, without the enjoyment of that right requiring an active contribution on the part of the passenger.

The CJEU then finds that a passenger cannot be deemed to have given his or her ‘agreement’ when the air carrier presents information relating to the procedure for reimbursement of the ticket costs in an ambiguous manner. In particular, the CJEU finds that making reimbursement of the cost of that ticket by a sum of money subject to a procedure containing steps supplementary to the procedure for reimbursement by a travel voucher, conflicts with the objective pursued by Regulation 261/2004 consisting in ensuring a high level of protection for air passengers.

On the other hand, the CJEU finds that the form of the passenger’s agreement in this case, consisting of an online form, is allowed. The CJEU finds that the exclusion of such a form would increase the burden associated with the administrative management of the reimbursements, which would delay the reimbursement process which could be contrary to the passengers’ interests.

The answer to the question is therefore that, in case of a flight cancellation, the passenger is deemed to have given his signed agreement to reimbursement of the cost of the ticket by a travel voucher, where he or she has filled in an online form and by which he or she chose such a means of reimbursement to the exclusion of reimbursement by a sum of money. However, the passenger must be able to make an effective and informed choice, which presupposes that the air carrier has provided to that passenger, in a fair manner, clear and full information as to the various means of reimbursements available to him or her.

Questions?

If you have any questions about this article or other trade and transportation issues, you can contact Ploum’s Customs, Trade & Logistics team, Jeroen Zandt (j.zandt@ploum.nl) and/or Demi van Hove-Dinkov (d.vanhove@ploum.nl). Please note that we do not handle air passenger claims on behalf of passengers. For these claims, we kindly refer you elsewhere. For all other trade or transportation legal matters, you can send us an email.