Additional Payments and Final Price for Passenger Air Services: Interaction between Air Services Regulation and EU Directives

The recent case law of the CJEU – and, in particular, CJEU 15 January 2015, C-573/13, Air Berlin – further clarifies the meaning of Art 23 of EC Regulation 1008/2008 on air services. It also offers the opportunity to look into its systematic positioning and in particular its interaction with the rules on unfair commercial practices as well as the rules on information duties and additional payments laid down in the consumer rights directive. The interaction between EC regulation 1008/2008 on air services (hereafter: ASR), directive 2005/29/EC on unfair commercial practices (hereafter: UCP-Directive) as well as directive 2011/83/EU on consumer rights (hereafter: CRD) – and, consequently, with their implementing provisions – is indeed particularly relevant. On the one hand, the information duties contained in Art 23 ASR contribute to specify the content of the provisions concerning unfair (and, in particular, misleading) commercial practices. On the other hand Art 3 para 2 CRD foresees that if any of its provisions conflicts with a provision of another Union act governing specific sectors, the provision of that other Union act shall prevail and apply to those specific sectors. In particular, Art 3 para 3 lit k CRD clarifies that the sole provisions of the consumer rights directive which find applications to contracts for passenger transport services are Art 8 para 2 as well as Art 19 and 22 CRD. The three aforementioned provisions integrate therefore the rules for the operation of air services in the EU, excepting contracts which fall within the scope of Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours.