1. Art. 23 Abs. 1 Sentence 2 Regulation (EG) No.. 1008/2008 the European Parliament and of the Council of 24. September 2008 concerning common rules for the operation of air services in the Community is to be interpreted, that the final price to be paid as part of an electronic booking system such as that at issue in the main proceedings in each of prices for air services, including on initial specification, be shown.

2. Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 is to be interpreted, that the final price to be paid as part of an electronic booking system such as that at issue in the main proceedings, not only for the customer selected flight service, but also be shown for each flight service, whose price is displayed.

JUDGMENT OF THE COURT (Fifth Chamber) 15. January 2015 C-573/13

"Reference for a preliminary ruling - Regulation (EG) No.. 1008/2008 – Luftverkehrsdienste – Art. 23 Abs. 1 Sentence 2 - Price Transparency - Electronic Booking System - Airfares - Always auszuweisender final price "

In Case C-573/13

REFERENCE for a preliminary ruling under Article. 267 TFEU, from the Bundesgerichtshof (Germany) by decision of 18. September 2013, received at the Court on 12. November 2013, in the method

Air Berlin plc & Co. Aviation KG

towards

Federation of Consumer Organisations and consumer associations - Consumer Federation eV.

adopt

THE COURT (Fifth Chamber)

with the Chamber President T. of Danwitz the judge C. Vajda (Reporter), A. Roses, It. Juhász and D. Cockroaches,

Advocate General: And. Bot,

Chancellor: A. Calot Escobar,

to the written procedure,

after considering the observations

- Air Berlin plc & Co. Aviation KG, vertreten durch die Rechtsanwälte M. Bud and A. Rolling,

- The Federation of Consumer Organisations and consumer associations - Consumer Federation eV, vertreten durch Rechtsanwalt P. Aquarius,

- The German Government, represented by T. Henze and K. Petersen, acting as Agents,

- The Belgian Government, by J.-C.. Halleux and T. Materne, acting as Agents,

- The Italian Government, represented by G. Palmieri, acting as Agent, assisted by W. Ferrante, State Attorney,

- The Netherlands Government, represented by M. Bulterman and J. Langer, acting as Agents,

- The Austrian Government, represented by C. Pesendorfer, acting as Agent,

- The European Commission, represented by W. Molls and F. Wilman, acting as Agents,

because of the judgment after hearing the Advocate General, to judgment without an Opinion on the Case,

following

Judgment

1 The preliminary ruling concerns the interpretation of Article. 23 Abs. 1 Sentence 2 Regulation (EG) No.. 1008/2008 the European Parliament and of the Council of 24. September 2008 concerning common rules for the operation of air services in the Community (ABl. The 293, S. 3).

2 The reference was made in proceedings between Air Berlin plc & Co. Aviation KG (below: Air Berlin), an air carrier, and the Federation of Consumer Organisations and consumer associations - Consumer Federation eV. (below: Federal Association) on the type of display fares within the electronic booking system by Air Berlin.

Legal framework

3 The 16. Preamble to Regulation No. 1008/2008 is:

"Customers should be able, the prices of various air carriers for air services to effectively compare. Therefore, the final price paid by the customer for coming from the Community air services should always be reported, including all taxes, Fees and charges. The carriers of the Community should also be encouraged, indicate the final price for their air services from third countries into the Community. "

4 According to Article. 1 Abs. 1 governed by Regulation No. 1008/2008 the approval of air carriers of the European Union, the right of carriers of the Union, Provide air services within the Union, and the pricing of air services within the Union.

5 Art. 2 ("Definitions") of the Regulation provides:

"For the purposes of this Regulation, the following definitions shall apply::

4. ,Flugdienst' is a flight or series of flights carrying passengers, Cargo and / or mail;

18. ,Flugpreise' are expressed in euros or in local currency prices, to be paid for the carriage of passengers on air services to air carriers or their agents or other ticket sellers, and any conditions, under which those prices apply, including the remuneration and conditions, agencies and other ancillary services are offered;

…“

6 Art. 23 ("Information and non-discrimination") of Regulation No. 1008/2008 provides in paragraph. 1:

"The publicly available fares and freight rates, in any form whatsoever - the Internet - for air services from an airport in the territory of a Member State, on which the Treaty applies application, offered or published, include the applicable tariff conditions. The final price to be paid is always indicated and shall include the applicable fare or the applicable air freight rate and all applicable taxes and charges, Surcharges and fees, which are unavoidable and foreseeable at the time of publication, include. In addition to the final price at least following shall be specified:

a) the fare or. Air freight rate,

b) taxes,

c) airport taxes and

d) other fees, Surcharges and fees, such as those, related to the security or fuel related,

as far under the letter b, c and d these items, or the fare. air freight rate were added. Optional price supplements to be clear, communicated transparent and unambiguous way at the start of any booking process; the adoption of voluntary additional costs due to customers is done, Opt-in 'basis. "

The main proceedings and the questions referred

7 The accounting system of Air Berlin until the end 2008 designed in such a way, vorfand that the customer after selecting a flight destination and a date in a second step, a table, in which the possible flight connections for the selected day departing- and arrival times, and two flights were specified for each flight. In a field below this table incurred for a selected flight duty taxes and fuel surcharge are given and all these elements inclusive "price per person" bordered reported. Behind the box a double star notice was attached, about the possible attack and the conditions of processing fee („Service Charge“) has been advised, which was not initially included in the final price. After the customer had entered the required data in a third step booking, the final trip price including the handling charge him was displayed in a fourth step booking.

8 The entry into force of Regulation No. 1008/2008 at the 1. November 2008 Air Berlin changed the second step of the booking system to go from, that in the table in question on the departure- and arrival times of the fare for the selected flight duty, - reported separately - Taxes and Fees, the fuel surcharge and the sum of the cost components were specified. In a field under this table formed from this information and price were shown the processing fee and including the final price per person for the selected flight.

9 Since the Federation of view was, that this view prices not meet the requirements of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 corresponds, he took Air Berlin court for an injunction and to reimbursement of his claim thus caused Abmahnkosten. The trial court granted the application of the Federation held, and his sentence was upheld on appeal. In contrast, Air Berlin has appealed, by which the referring court is called.

10 According to the national court, the success of revision depends on the interpretation of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 from.

11 The national court as the appellate court considers, that a processing fee as raised by Air Berlin as a kind referred to in. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 inevitable and predictable at the time of publication fee is included in the final price.

12 Nevertheless, the referring court considers the case of electronic reservation systems, such as that at issue in the main proceedings under two different aspects of problems in the interpretation of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008. One relates to the exact date, to the final price of air services in the context of the booking system must be shown, and secondly, the representation of this final price.

13 First, the Court of Appeal at the exact time I, to the final price of air services in the context of the booking system must be reported, decided, that the fare details at booking system by Air Berlin of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 had violated. In his view, this provision, after the final price to be paid is "always" be shown, be construed as meaning, that the final price must be specified for each quotation. The Court of Appeal has considered this condition is not fulfilled, if in a table, only the prices of the different, the selection criteria chosen by the customer would be presented corresponding Flights, without the processing fee is included therein or shall be shown separately.

14 According to the national court is compatible with Article. 23 Abs. 1 of Regulation No. 1008/2008 to consider pursuing the goal of consumer protection, resulting from the 16. Recital of this Regulation and from the wording of that provision, as well as the heading of Article. 23 resulting, legal bar for information and transparency in relation to the prices of air services (Judgment ebookers.com Germany, C‑112/11, EU:C:2012:487, Rn. 13). After the 16. Recital of the Regulation should these tariff transparency enable customers, the prices of various air carriers for air services to effectively compare. Art. 23 was introduced, in order to counter a previous practice of providers of air services, Fares exclude taxes, To publish fees or fuel surcharges (see S. 10 submitted by the European Commission's proposal for a Regulation of the European Parliament and of the Council on common rules for the operation of air services in the Community, COM[2006] 396 final, and the marginal. 8.1 and 8.4 the opinion of the European Economic- and Social Committee of 31. More 2007 on this proposal [ABl. C 175, S. 85]).

15 The national court goes on, neither Article. 23 Abs. 1 of Regulation No. 1008/2008 nor any other provision of this regulation contains a more detailed regulation of the question, was reported at which time the final price. However Determine type. 23 Abs. 1 Sentence 4, optional additional costs that are "at the start of any booking process" inform. The will of the Union legislature, to enable effective price comparison, speaking, however, this, the word "always" in Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 by reference to the concept in 16. Term used Recital "at any time" should be interpreted. Then, the final price within the meaning of that provision would be shown earlier, as it kind. 23 Abs. 1 Sentence 4 was required by the Regulation for the optional additional. According to this interpretation, the requirement to obtain an early indication of the final prices for air services could require, that the price must be indicated at the time of the initial display of the customer information corresponding to target date and flight service.

16 Secondly, the referring court to represent the final price of air services from, dass Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 regulates this question is not unique. Art. 23 Abs. 1 Sentence 4 the Regulation stipulates only, that optional fees on clear, transparent and unambiguous way be communicated.

17 As the trial court already had and the Court of Appeal from the provision in Article. 23 Abs. 1 Sets 2 and 4 of Regulation No. 1008/2008 concluded, that the final price for air services should always be called, or whenever Pricing, in a multi-step booking system so already at the first indication of fares and rates on each side, the price information contained. In this case, the final price then for each displayed in the table flight service and not just for the preselected of Air Berlin or the customer selected by clicking on air services would indicate.

18 Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 however, could be interpreted in a manner less closely, that not only at the end of the booking process, but early success final price indication, as they offer Air Berlin for each flight service specifically selected, enables also a need to protect consumers' supporting effective comparison with the prices of other airlines, even if he is possibly less convenient for the consumer.

19 Under these circumstances, the Bundesgerichtshof decided, stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

1. Is the provision of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 be interpreted, that the final price to be paid as part of an electronic booking system must be shown in the initial display of prices for air services?

2. Is the provision of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 be interpreted, that the final price to be paid as part of an electronic booking system should be shown only for the specifically selected by the customer service, or for each displayed flight service?

The questions

The first question

20 By its first question, the national court asks the Court, ob Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 is to be interpreted, that the final price to be paid for each of prices for air services, including on initial specification, be shown.

21 According to Air Berlin, the answer to the first question depends on the interpretation of the term "always" in Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 from. This term does not require, that the final price to be paid is to be classified in the initial display of prices for air services, but only, that he was expel, after the customer has selected a specific flight and before the mandatory completion of the booking contract.

22 Air Berlin maintains in this, that in the table, which will appear in the second step of the online booking system, automatically selects the cheapest connection will be preselected and the system the final price in terms of Art. 23 Abs. 1 of Regulation No. 1008/2008 ID cards, of the price for the selected flight, Taxes and Fees, the fuel surcharge and handling charge containing. Choose the customer an alternative, So expensive, Flight connection, as the system from the final price for this connection.

23 As the Federation, the German, the Belgian, the Italian, the Dutch and raise the Austrian Government and the European Commission, is not this interpretation with the wording of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 compatible.

24 Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 determined namely, that the final price to be paid all times be indicated and the applicable fare or. the applicable air freight rate and all applicable taxes and charges, Surcharges and fees, which are unavoidable and foreseeable at the time of publication, must include.

25 As is clear from the wording of this provision, is the final price to be paid "always" be shown, without that between the time, to which this price will be shown for the first time, the time, at which the customer selects a specific flight, or the date of the binding contract is entered would distinguish.

26 The duty imposed by that provision, always be shown the final price to be paid, therefore implies, that this price in the context of an electronic booking system such as that at issue in the main proceedings in each of prices for air services, including on initial specification, be shown.

27 This is achieved by a systematic interpretation of Article. 23 Abs. 1 of Regulation No. 1008/2008 as well as the meaning and purpose of Article. 23 Abs. 1 Sentence 2 confirmed.

28 As the Federation, the German and highlight the Austrian Government and the Commission, can in fact out of the way in. 23 Abs. 1 Sentence 4 of Regulation No. 1008/2008 expression used does not derive "at the start of any booking process", that the term "always" in Art. 23 Abs. 1 Sentence 2 this regulation must be interpreted, that the final price is display only at the beginning of an accounting process.

29 The term "at the start of any booking process" in Art. 23 Abs. 1 Sentence 4 implied, that the optional additional costs are to be displayed at the beginning of the actual booking process, so that the customer can decide, if he wants to take the additional benefit in question actually use (vgl. to that effect ebookers.com Germany, EU:C:2012:487, Rn. 15).

30 Die in Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 established mandatory, the final price, including the inevitable and predictable cost "always" be shown, however, there is already from the date, to the fares are published in any form, even before the start of booking process.

31 The Federal Association, the German, the Belgian, the Italian, the Netherlands and Austrian Governments and the Commission rightly point out, that this interpretation of the meaning and purpose of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008, as he made himself their 16. Recital results, is consistent.

32 In 16. Preamble to Regulation No. 1008/2008 it is, Customers should be able, the prices of various air carriers for air services to effectively compare, and therefore the final price paid by the customer for air services departing from an airport in the EU territory should always be reported, including all taxes, Fees and charges.

33 The Court has so far been an opportunity to clarify the, that both from the heading of Article. 23 of Regulation No. 1008/2008 as clearly results from the wording of the first paragraph of this provision, that it should ensure information and transparency in relation to the prices for air services and thus contributing to the protection of the customer, takes these services (Judgments ebookers.com Germany, EU:C:2012:487, Rn. 13, and Vueling Airlines, C‑487/12, EU:C:2014:2232, Rn. 32).

34 It thus follows from the 16. Preamble to Regulation No. 1008/2008, that the air carrier obligation imposed, the final price to be paid "at any time" expel, is necessary, it will help the prices of various air carriers for air services effectively compare, in accordance with the kind by. 23 Abs. 1 Regulation objective pursued the effective price comparability for air services (vgl. to that effect, Vueling Airlines, EU:C:2014:2232, Rn. 33).

35 It follows that the answer to the first question, dass Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 is to be interpreted, that the final price to be paid as part of an electronic booking system such as that at issue in the main proceedings in each of prices for air services, including on initial specification, be shown.

The second question

36 By its second question, the referring court asks the Court, ob Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 is to be interpreted, that the final price to be paid is to be shown only for selected by the customer service, or for each displayed flight service.

37 Air Berlin considers, Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 do not ask, that the final price for each displayed Flight am deported, but only, that he would be expelled for the flight selected by the customer. An effective comparison within the meaning of 16. Recital of the Regulation is only possible, if the customer has selected a specific flight, the connect the departure airport at a certain time with the arrival airport. Accordingly, there can in Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 not intervene until established obligation to indicate the final price, if the customer chose a specific flight, and only for that flight.

38 This interpretation can not be accepted.

39 As the Federation, the German, the Belgian, the Dutch and make the Austrian Government and the Commission rightly claims, applies in Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 established mandatory, the final price "always" be shown, for any form of publication of fares, including the prices offered for a number of air services in tabular form. Thus, the conditions laid down in that provision obligation is not fulfilled only for the selected flight by specifying the final price.

40 This interpretation is supported by the in Rn. 31 to 34 the above, this judgment meaning and purpose of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 confirmed.

41 The obligation, must show the final price to be paid for each flight, whose price is displayed, and not only for the selected flight, advertising enables the customer, in accordance with the type of. 23 Abs. 1 of Regulation No. 1008/2008 the prices of various air carriers for air services to compare pursued general objective of transparency of prices for air services effectively.

42 Air Berlin considers, an interpretation of Article. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008, according to which the final price to be paid is to be disclosed in each displayed Flight, would result in, that only the final price should be reported, and would lead to a general ban the display of pure air fares. Art. 23 Abs. 1 Sentence 3 but requires, that the pure fare will be shown separately in addition to the final price.

43 This argument is without foundation than any rejected, as in Art. 23 Abs. 1 Sentence 2 Regulation established mandatory, must show the final price to be paid for each displayed Flight, not result in a ban, the fare or. Air freight rate pursuant to Art. 23 Abs. 1 Sentence 3 be shown for each of these flights.

44 Rather, it follows from the wording of Article. 23 Abs. 1 Sentence 3 of Regulation No. 1008/2008, that the obligation, at least the fare or. Air freight rates and taxes, airport taxes and other fees, Surcharges and fees - if they or the fare. were added to the air freight rate - expel, in addition to the type of. 23 Abs. 1 Sentence 2 resulting obligation to indicate the final price occurs.

45 It follows that the answer to the second question, dass Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 is to be interpreted, that the final price to be paid as part of an electronic booking system such as that at issue in the main proceedings, not only for the customer selected flight service, but also be shown for each flight service, whose price is displayed.

Costs

46 The parties to the main proceedings, a step in the action pending before the national court; the decision on costs is a matter for that court. Other than the costs of those parties submitting observations to the Court, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby:

1. Art. 23 Abs. 1 Sentence 2 Regulation (EG) No.. 1008/2008 the European Parliament and of the Council of 24. September 2008 concerning common rules for the operation of air services in the Community is to be interpreted, that the final price to be paid as part of an electronic booking system such as that at issue in the main proceedings in each of prices for air services, including on initial specification, be shown.

2. Art. 23 Abs. 1 Sentence 2 of Regulation No. 1008/2008 is to be interpreted, that the final price to be paid as part of an electronic booking system such as that at issue in the main proceedings, not only for the customer selected flight service, but also be shown for each flight service, whose price is displayed.

Signatures

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