Verein für Konsumenteninformation v Koninklijke Luchtvaart Maatschappij NV (2026) C-45/24 CJEU (4th Chamber)

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European Court of Justice, Fourth Chamber

Facts

  1. Air passengers purchased airline tickets for flights from Vienna (Austria) to Lima (Peru), via Amsterdam (Netherlands), and for flights from Lima to Vienna via Amsterdam, operated respectively on 19 August 2020 and 28 September 2020 by KLM, on the Opodo booking portal, a travel agency certified by the International Air Transport Association (IATA) and authorised to issue airline tickets for KLM. Those passengers paid Opodo the total sum of EUR 2 053.48, including the price of the tickets corresponding to EUR 1 958.34 and an agency commission corresponding to the purchase of those tickets on its booking portal for an amount of EUR 95.14.
  2. As a result of the cancellation of those flights, those passengers obtained reimbursement of the price of the tickets from KLM, although that agency commission of EUR 95.14 remained to be borne by them.

Issue(s)

Should the carrier, under Article 8(1)(a) of EU Regulation 261/2004, be liable to reimburse the passenger for the commission the passenger paid to the travel agent, Opodo?

Discussion

  1. By its first question, the referring court asks, in essence, whether Article 8(1)(a) of Regulation No 261/2004, read in conjunction with Article 5(1)(a) thereof, must be interpreted as meaning that the price of the airline ticket to be taken into consideration for the purpose of determining the amount of the reimbursement owed by the air carrier to a passenger in the event of cancellation of a flight includes the difference between the amount paid by that passenger and the amount received by that air carrier, corresponding to a commission received by a company, which has acted as an intermediary, without that air carrier being required to know the exact amount of that commission.
  2. As a preliminary point, it should be noted that, without formally calling into question the admissibility of the first question, KLM contends, in its written observations, that a distinction must be drawn between the concepts of ‘arrangement fees’ and ‘agency commissions’, which are used synonymously by the referring court in the wording of the first question referred for a preliminary ruling. While ‘arrangement fees’ correspond to the remuneration that travel agencies receive from their customers for the services they offer, ‘agency commissions’ refer to the remuneration that those agencies receive from air carriers.
  3. In that regard, it should be borne in mind that, in accordance with settled case-law, the national court alone has jurisdiction to find and assess the facts in the case before it and to interpret and apply national law. The Court must take account, under the division of jurisdiction between the Court and the national courts, of the factual and legislative context, as described in the order for reference, in which the questions put to it are set (judgment of 17 October 2024, NFŠ, C-28/23, EU:C:2024:893, paragraph 31 and the case-law cited).
  4. In the present case, it is apparent from the information provided by the referring court that, first, an amount of EUR 95.14 corresponding, according to the wording used by that court, to ‘arrangement fees (agency commission)’ was collected from the passengers at issue in the main proceedings by Opodo, when they purchased the tickets at issue in the main proceedings from that travel agency’s website.
  5. Second, that court recalls that the Court of Justice has already ruled on agency commissions in the context of the interpretation of the scope of the right to reimbursement of air passengers under the combined provisions of Articles 5 and 8 of Regulation No 261/2004, in the judgment of 12 September 2018, Harms (C-601/17, EU:C:2018:702).
  6. In that regard, it should be noted that the distinction drawn by KLM between an ‘agency commission’ and ‘arrangement fees’, the former borne by the air carrier and the latter by the air passenger, is in any event devoid of any legal significance in so far as both the case in the main proceedings and the judgment of 12 September 2018, Harms (C-601/17, EU:C:2018:702) mentioned by the referring court concern the reimbursement of the amount collected by the intermediary from an air passenger, that is to say, the difference between the amount paid by that passenger for the airline ticket and the amount received by that air carrier.
  7. As regards the substance of the question referred, it should be recalled that, in accordance with Article 8(1)(a) of Regulation No 261/2004, read in conjunction with Article 5(1)(a) of that regulation, the onus is on the air carrier, in the event of cancellation of a flight, to offer assistance to the air passengers concerned in the form of offering them, inter alia, reimbursement of their ticket, at the price at which it was bought, and, when relevant, a return flight to their first point of departure (judgment of 12 September 2018, Harms, C-601/17, EU:C:2018:702, paragraph 12).
  8. The Court has thus held that the wording of Article 8(1)(a) of Regulation No 261/2004 establishes a direct link between the concept of ‘ticket’ and the expression ‘price at which it was bought’, it being possible for the passengers concerned to buy such a ticket either directly from the air carrier or through an intermediary such as, inter alia, the authorised agent of that air carrier, referred to in Article 2(f) of that regulation (see, to that effect, judgment of 12 September 2018, Harms, C-601/17, EU:C:2018:702, paragraph 13).
  9. In that regard, it follows from the wording of Article 2(f) of Regulation No 261/2004 that a ‘ticket’ constitutes a document or an equivalent in paperless form, including electronic form, issued or authorised by an air carrier or an agent authorised by such an air carrier. It follows from that definition that the various elements of such a ticket, including its price, must, if that ticket is not issued by the air carrier itself, in any event be authorised by it.
  10. In that regard, an agency commission, as a component of the price of the airline ticket, must be regarded as necessary and, therefore, ‘unavoidable’ in order to avail of the services offered by that air carrier (see, to that effect, judgments of 22 June 2016, Mennens, C-255/15, EU:C:2016:472, paragraph 36, and of 12 September 2018, Harms, C-601/17, EU:C:2018:702, paragraph 18).
  11. As is apparent from points 19 and 27 of the Advocate General’s Opinion, the purchase of the airline ticket through an intermediary constitutes a ‘single transaction’ in so far as the agency commission forms part of the ticket price, within the meaning of Article 8(1)(a) of that regulation, since that commission cannot be avoided by the passenger when purchasing the ticket.
  12. Accordingly, the collection of that agency commission, as an ‘unavoidable’ component of the price of the airline ticket, must be regarded as being authorised by the air carrier and, therefore, as having to be reimbursed under Article 8(1)(a) of Regulation No 261/2004.
  13. Where that air carrier accepts that the intermediary issues airline tickets in its name and on its behalf, it may be assumed that that air carrier is necessarily aware of that intermediary’s commercial practice of collecting an agency commission from the air passenger when purchasing an airline ticket, even in the absence of any express contractual clause to that effect, particularly since that commission is inseparable from the price of the airline ticket in question.
  14. However, it is not necessary for the air carrier to know the exact amount of the agency commission in order for the air passenger whose flight has been cancelled to be able to obtain reimbursement of that commission, pursuant to Article 8(1)(a) of Regulation No 261/2004.
  15. An interpretation whereby reimbursement of the amount paid by the air passenger is subject to prior knowledge, by the air carrier, of the exact amount of the agency commission could lead that carrier to attempt to refuse reimbursement on the ground that it was not informed of the precise amount of the agency commission. In such a situation, that passenger could be forced to take action against the intermediary in order to obtain reimbursement of the ticket price including the amount of the agency commission, under Article 8(1)(a) of Regulation No 261/2004, with the risk that such a procedure might delay that reimbursement and give rise to additional, or even disproportionate, costs for that passenger.
  16. Such an outcome would be contrary to the objective of ensuring a high level of protection for air passengers, as set out in recital 1 of Regulation No 261/2004, and to the simplification of the procedures for reimbursement put in place by that regulation.
  17. In the same vein, that interpretation could lead the air passenger to forego the option of using an intermediary and to favour booking directly with the air carrier, although the price of the airline ticket issued by such an intermediary may prove to be financially more attractive to that passenger.
  18. In the light of all the foregoing considerations, the answer to the first question is that Article 8(1)(a) of Regulation No 261/2004, read in conjunction with Article 5(1)(a) thereof, must be interpreted as meaning that the price of the airline ticket to be taken into consideration for the purpose of determining the amount of the reimbursement owed by the air carrier to a passenger in the event of cancellation of a flight includes the difference between the amount paid by that passenger and the amount received by that air carrier, which corresponds to a commission collected by a company acting as an intermediary, without that air carrier being required to know the exact amount of that commission.

Useful for

EU261 reimbursement includes intermediary commission



Treaty provisions considered

No treaty provisions considered.

Legislation considered

EU Regulation 261/2004/

Key subjects or concepts

Local Law on Consumers/

Appeals history

No relevant appeals or appeal history identified for this case.

Lawyers or counsel before the European Court of Justice, Fourth Chamber

No counsel or legal team identified for this case.

Additional case references or citations

ECLI:EU:C:2026:2

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