(CN) – Online booking sites should not force customers to opt out of features that will cost extra, like travel insurance, an adviser to the European Court of Justice said Thursday.
A German consumer protection group sued the Britain-based travel website, EBookers.com, last year for automatically adding travel insurance to its airfare quotes and then forcing consumers to uncheck a box to decline the coverage.
The group claimed this practice violates a 2008 regulation that requires greater transparency on airfares for flights that departing within the European Union. The law requires travel agents to always indicate the final price of a ticket, including airfare and all taxes, fees and surcharges. Extra services must be clearly identified at the start of any booking process and accepted by the customer on an opt-in basis.
It was unclear to the regional high court in Cologne whether the regulation applied only to services provided directly by the travel agents or to third party offerings as well.
Europe’s highest court said the national court asked it to weigh in on “whether such services provided by third parties, and which are charged to the customer by the company selling the flight together with the airfare as part of a total price, constitute ‘optional price supplements’ with the result that they must be offered on an ‘opt-in’ basis.”
EBookers provides travel insurance by a third party, and the company argued that the regulation “does not cover the costs of services which are not part of the air service contract and which are not provided by air carriers,” according to the opinion issued Thursday by Advocate General Jan Mazak.
The governments of Spain, Italy, Austria and Finland, as well as the European Commission, joined the German consumer group against EBookers. They argued that the purpose of the regulation is the “enhancing of consumer protection and enabling customers to compare effectively the prices for air services of different airlines,” Mazak said.
“In their view it is clear … that [the regulation] applies not only to air carriers and their own services but also to agents, intermediaries or, more generally, third parties and the services offered by them in connection with air services or the selling of tickets,” the opinion states.
“The rule is intended … to enable customers to compare effectively the prices for air services of different airlines,” Mazak wrote. “To that effect, for there to be effective price comparison, it must be ensured that the final prices to be indicated relate to a similar (air) service and comprise, as far as possible, similar price components. … In that way, the customer will be informed about the actual costs of flying with a particular airline, under usual conditions, from A to B and will be able to compare that price with the actual price of the same flight operated by another airline or offered by other agents or ticketsellers.”
“Secondly, and by contrast, the ‘price supplements’ to which [the regulation] refers cannot, as the commission has correctly observed, be regarded as forming part either of the ‘final price’ for the purposes of that provision or of the airfare itself as one of the components,” Mazak added.
“Those supplements are described as ‘optional:’ thus by definition they are prices or costs which – unlike airfare and other price components referred to in [the regulation] – are not unavoidable if a particular flight is to be taken and accordingly concern ‘extras’ in relation to the air service itself which the customer can choose to accept or not,” the opinion states. “It is precisely because the customer has that choice – which is not the case so far as the airfare itself or the taxes and charges are concerned – that such supplementary prices can, in principle, be made subject to an ‘opt-in’ or an ‘opt-out’ procedure.”
“It therefore seems to me, from a reading of [the regulation] that, contrary to the view taken by ebookers.com, a price or cost component is not excluded from the scope of that regulation merely because it arises from, or is to be paid as a consideration for, a service provided by a third party which is legally distinct from a flight carrier or because it does not arise directly from the carrying out of air services themselves … but merely arises in connection with such services,” Mazak wrote.
“Finally, the fact that acceptance by means of an opt-out procedure is not generally prohibited under consumer protection legislation does not, to my mind, cast doubt on the interpretation whereby, in the context of air services and their prices under [the regulation], the prohibition of acceptance by an opt-out procedure applies to costs such as that of taking out a travel cancellation insurance,” Mazak wrote.
Services such as travel insurance offered when booking a flight must be presented to the customer on an “opt-in” basis, irrespective of whether that service is offered by a third party, the adviser concluded.
The Court of Justice said it will consider Mazak’s nonbinding opinion as it considers the case.