A travel agent may not automatically include travel insurance when selling airline tickets. Such “optional extras” may only be offered on an “opt-in” basis.
The EU Court of Justice followed its advocate-general, Jan Mazák, in the presentation of his conclusion in the case (C-112/11) which opposed a German consumer protection association and ebookers.com, which operates an online travel portal, where it offers airline tickets.
The problem with their offer was that the prices listed automatically included travel insurance. It was only at the bottom of the webpage, ie it is only upon the completion of booking, that the customer received information on how to opt out of the insurance. This meant that with ebookers, not taking out an insurance could only be the result of an explicit opt-out. This was unlawful, according to the advocate-general, who said that such price supplements should be specifically opted in to. In other words, customers should tick the box to activate the travel insurance, rather than untick the box to remove it.
Mazák’s conclusions found that automatically including travel insurance in the price listed at the beginning of the booking was contrary to Regulation 1008/2008, whose objective is to ensure a greater transparency of flight prices. According to this regulation, ticket sellers must indicate from the start the definitive price of the ticket, including all the applicable taxes and charges and fees.
However, the Advocate General considered that the requirement that optional price supplements must be on an ‘opt-in’ as opposed to ‘opt-out’ basis serves a different purpose than ensuring price comparison, namely that of consumer protection. It prevents customers from being induced when booking a flight to pay for unnecessary extra services, unless they actively and expressly choose to accept such additional offers and the prices to be paid for them. The Court finds that ‘optional price supplements’ relate to services which supplement the air service itself. Those services are neither compulsory nor necessary for the purposes of the flight and the customer may choose either to accept or refuse them. It is precisely because a customer is in a position to make that choice that EU law requires such price supplements to be communicated in a clear, transparent and unambiguous way at the start of each booking process, and that their acceptance must be on an opt-in basis.
The full text of the judgment is published on the CURIA website.
Pictures of the delivery of the Opinion are available from “Europe by Satellite”
Pauschalreisen und europäisches Internationales Verbraucherschützrecht by Mankowski, Peter (published in: Transportrecht, Vol. 34, No 2 (2011), p. 70-74 (available in EP library))