Opinion of the Advocate General — ECLI:EU:C:2025:468
Date: 2025-06-19
Language of the case: German

Translation C-45/24 – 1 
Case C-45/24 
Request for a preliminary ruling 
Date lodged: 
24 January 2024 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
13 December 2023 
Appellant on a point of law: 
Verein für Konsumenteninformation 
Respondent in the appeal on a point of law: 
Koninklijke Luchtvaart Maatschappij NV 
  
The Oberster Gerichtshof (Supreme Court, Austria), sitting as the court ruling on 
appeals on points of law (Revision) […], in the case of the appellant on a point of 
law (‘the appellant’), the Verein für Konsumenteninformation (Association for 
Consumer Information), 1060 Vienna, […], versus the respondent in the appeal on 
a point of law (‘the respondent’), Koninklijke Luchtvaart Maatschappij NV, 
Netherlands, 1182 GP Amstelveen, […], concerning EUR 95.14 […], following 
the appeal on a point of law brought by the appellant against the judgment of the 
Landesgericht Korneuburg (Regional Court, Korneuburg, Austria), sitting as the 
court ruling on appeals on the merits (Berufung), of 21 March 2023, GZ 22 R 
37/23f-23, by which the judgment of the Bezirksgericht Schwechat (District 
Court, Schwechat, Austria) of 17 November 2022, GZ 20 C 232/21 z-17 was 
amended, has made, in closed session, the following 
O r d e r: 
I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling under Article 267 TFEU: 
1. Is Regulation (EC) No 261/2004 of the European Parliament and of the 
Council of 11 February 2004 establishing common rules on compensation and 
assistance to passengers in the event of denied boarding and of cancellation or 
EN 
REQUEST FOR A PRELIMINARY RULING OF 13. 12. 2023 – CASE C-45/24 
 
2  
long delay of flights, and repealing Regulation (EEC) No 295/91, and in particular 
Article 8(1)(a) thereof, to be interpreted as meaning that the price of the ticket to 
be taken into consideration for the purpose of determining the reimbursement 
owed by the air carrier to a passenger in the event of cancellation of a flight also 
includes the difference between the amount paid by the passenger and the amount 
received by the air carrier, which corresponds to a commission collected by a 
person acting as an intermediary between those two parties, if the air carrier, 
although aware that the other person regularly charges a commission (arrangement 
fee) for an intermediary service, does not know the amount of that commission in 
the specific case? 
2. Does the burden of proving that the air carrier had the necessary knowledge 
lie with the passenger seeking reimbursement, or is it for the air carrier to prove 
that it lacked the necessary knowledge of the commission? 
II. The proceedings relating to the appeal on a point of law brought by the 
appellant are stayed pending the preliminary ruling from the Court of Justice of 
the European Union […]. 
G r o u n d s 
A. The facts of the case: 
1 The passengers had airline tickets booked via the online booking portal Opodo for 
the flights KL 1840 and KL 743 from Vienna to Lima via Amsterdam on 
19 August 2020 and KL 744 and KL 1847 from Lima to Vienna via Amsterdam 
on 28 September 2020 to be operated by the respondent, an airline. Opodo is an 
IATA-certified travel agency and, as such, is entitled to issue airline tickets for the 
respondent. The respondent had been collaborating with Opodo for at least a 
decade. At the time of booking, there was a global incentive contract in place 
between the respondent and Opodo which provided for certain reward payments 
for the intermediary Opodo if a certain number of the respondent’s tickets were 
sold. It has not been contractually established between the respondent and Opodo, 
either through the IATA agreements or through the incentive contracts, whether 
and at what amount Opodo can or is permitted to charge passengers an agency 
commission. 
2 The passengers paid a total of EUR 2 053.48 to Opodo. The respondent cancelled 
the flights. The passengers received reimbursement of EUR 1 958.34 in respect of 
ticket costs before the action was brought. The difference of EUR 95.14 represents 
the arrangement fee (agency commission) of the travel agency Opodo. The 
respondent had no knowledge of its specific amount. 
3 The passengers assigned their claims to reimbursement of the ticket costs to the 
appellant, a consumer protection association, which accepted the assignment. 
VEREIN FÜR KONSUMENTENINFORMATION 
 
3 
B. The arguments of the parties in the proceedings and the procedure to 
date: 
4 By its action, the appellant claims EUR 95.14 plus interest from the respondent on 
the basis of Article 8 of Regulation (EC) No 261/2004. It argues that the ticket 
costs should be reimbursed including the commission. The only necessary 
condition for that, it submits, is the respondent’s awareness that a commission is 
regularly set and that it accepts the intermediary’s setting of it. The appellant 
asserts that, by releasing its tickets to online travel agencies like Opodo, the 
respondent enlarges its field of operation. It would be unfair, it argues, not to 
require the respondent to reimburse the agency commission, given that the air 
carrier benefits from Opodo arranging ticket sales. The appellant submits that it 
cannot be inferred from the case-law of the CJEU that, for the commission to be 
included in the total price to be reimbursed, the respondent has to have authorised 
the specific amount of the commission. 
5 The respondent contended that the action should be dismissed. It argued that no 
agreement was in place regarding the charging of an arrangement fee and that it 
was generally unaware of whether Opodo charged such a commission or of how 
high it was if so. The respondent asserted that it had not authorised prices which 
deviated from the ticket price; in its understanding of the case-law of the CJEU, 
such authorisation would be a necessary condition for airline passengers to be able 
to claim reimbursement of arrangement fees from it in the event of cancellation. 
6 The court of first instance agreed with the appellant’s legal position and upheld 
the action. 
7 The court ruling on the appeal on the merits agreed with the respondent’s legal 
position and dismissed the action. 
8 The appellant’s appeal on a point of law is brought against the judgment on appeal 
with an application for alteration claiming that the action should be upheld. 
9 In its response to the appeal on a point of law, the respondent claims that the 
appeal on a point of law should be dismissed on grounds of inadmissibility or, in 
the alternative, should not be upheld on the merits. 
C. Relevant legal provisions: 
10 Article 2(f), Article 5(1)(a) and the first indent of Article 8(1)[(a)] of Regulation 
(EC) No 261/2004 of the European Parliament and of the Council of 11 February 
2004 establishing common rules on compensation and assistance to passengers in 
the event of denied boarding and of cancellation or long delay of flights, and 
repealing Regulation (EEC) No 295/91 (‘the Air Passenger Rights Regulation’) 
reads as follows, including headings: 
‘Article 2 
REQUEST FOR A PRELIMINARY RULING OF 13. 12. 2023 – CASE C-45/24 
 
4  
Definitions 
For the purposes of this Regulation: 
(a) … 
(f) “ticket” means a valid document giving entitlement to transport, or 
something equivalent in paperless form, including electronic form, issued or 
authorised by the air carrier or its authorised agent; 
(g) … 
Article 5 
Cancellation 
1. In case of cancellation of a flight, the passengers concerned shall: 
(a) be offered assistance by the operating air carrier in accordance with 
Article 8; and 
(b) … 
Article 8 
Right to reimbursement or re-routing 
1. Where reference is made to this Article, passengers shall be offered the 
choice between: 
(a) – reimbursement within seven days, by the means provided for in 
Article 7(3), of the full cost of the ticket at the price at which it was bought, for the 
part or parts of the journey not made, and for the part or parts already made if 
the flight is no longer serving any purpose in relation to the passenger’s original 
travel plan, together with, when relevant, 
– …’ 
D. Grounds for the referral: 
11 The Air Passenger Rights Regulation is intended to ensure a high level of 
protection for passengers (recital 1). When flights are cancelled, passengers 
should be able either to obtain reimbursement of their tickets or to obtain re-
routing under satisfactory conditions, and should be adequately cared for while 
awaiting a later flight (recital 13). 
12 In pursuit of those objectives, Article 5(1)(a) of the Air Passenger Rights 
Regulation provides that, in the event of the non-operation of a scheduled flight on 
VEREIN FÜR KONSUMENTENINFORMATION 
 
5 
which at least one seat was reserved (‘cancellation’; Article 2(l) of the Air 
Passenger Rights Regulation), the operating air carrier must offer the passengers 
concerned assistance in accordance with Article 8 of that regulation. Article 8(1) 
of the Air Passenger Rights Regulation provides that the passenger has the right to 
choose. Under the first indent of Article 8(1)(a) of that regulation, he or she can 
claim reimbursement of the full cost of the ticket ‘at the price at which it was 
bought’. 
13 Article 2(f) of the Air Passenger Rights Regulation defines a ticket as ‘a valid 
document giving entitlement to transport, or something equivalent in paperless 
form, including electronic form, issued or authorised by the air carrier or its 
authorised agent’. 
14 The CJEU has previously dealt with the scope of passengers’ right to 
reimbursement under Article 5 of the Air Passenger Rights Regulation, read in 
conjunction with Article 8 of that regulation, in connection with agency 
commissions, in its judgment of 12 September 2018 in Case C-601/17, Harms v 
Vueling Airlines SA. The passengers in that case had – as in the present case – 
purchased airline tickets via the Opodo intermediary platform. Following the 
cancellation of the flight, the air carrier reimbursed only the ticket price and not 
the agency commission. The CJEU first notes generally that the objectives of the 
Air Passenger Rights Regulation were not only to ensure a high level of protection 
for passengers but also to strike a balance between the interests of passengers and 
those of air carriers (paragraph 15). In the light of those objectives, it holds, it 
must be considered that, ‘while a commission collected by an intermediary from a 
passenger when a ticket was bought must, in principle, be regarded as a 
component of the price to be reimbursed to that passenger in the event of 
cancellation of the corresponding flight’, its inclusion must nevertheless be 
subject to certain limits, in view of the interests of the air carriers which it affects 
(paragraph 16). In the view of the CJEU, it follows from the definition of a ticket 
in Article 2(f) of the Air Passenger Rights Regulation ‘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, and therefore cannot be set without its 
knowledge’ (paragraph 17). That interpretation is supported, it finds, by the case-
law of the CJEU, from which it follows that the reimbursement of a part of the 
‘price of the ticket’ provided for in Article 10(2)(a) to (c) of the Air Passenger 
Rights Regulation, in the event that the air carrier places a passenger in a class 
lower than that for which the ticket was purchased, must be determined by 
reference to solely ‘unavoidable’ components of that price, in the sense that it is 
necessary to pay them in order to avail of the service proposed by the air carrier in 
return (paragraph 18). According to that judgment, a component of the price of the 
ticket which is set without the knowledge of the air carrier cannot be regarded as 
necessary in order to avail of the service proposed by the air carrier 
(paragraph 19). In the light of all the foregoing, the Court’s answer to the question 
referred was that the Air Passenger Rights Regulation, and in particular 
Article 8(1)(a) thereof, must be interpreted as meaning ‘that the price of the ticket 
to be taken into consideration for the purposes of determining the reimbursement 
REQUEST FOR A PRELIMINARY RULING OF 13. 12. 2023 – CASE C-45/24 
 
6  
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 the air carrier, which corresponds to a commission collected by a 
person acting as an intermediary between those two parties, unless that 
commission was set without the knowledge of the air carrier’ – which it is for the 
referring court to ascertain (paragraph 20). 
15 That decision of the CJEU makes it clear that the agency commission is, in 
principle, part of the reimbursement under Article 8(1)(a) of the Air Passenger 
Rights Regulation. However, differing interpretation possibilities are opened up 
by the exception specified by the CJEU that reimbursement of the arrangement fee 
(agency commission) is contingent on the commission not having been ‘set 
without the knowledge of the air carrier’ (paragraph 20). The question arises, in 
particular, to what degree of specificity the air carrier needs to have been informed 
about the commission in principle and possibly the amount thereof, and who bears 
the burden of proving the necessary knowledge or lack of knowledge on the part 
of the air carrier. 
16 On those points, the courts of the Member States have to date applied the 
judgment of the CJEU in Harms, C-601/17, differently (see also, on the following 
points, Degott on Article 8 in Schmid, BeckOK Fluggastrechte-Verordnung, 28th 
edition, 2023, paragraph 4b): 
17 (a) The Amtsgericht Eilenburg (Local Court, Eilenburg, Germany), for 
example, took the view that the air carrier (like others) was aware that the ticket 
agency usually charged a commission for its services as an intermediary, which 
the passenger must pay, in addition to the ticket price passed on to the air carrier, 
in order to be issued or provided with a ticket by the intermediary. It held that the 
air carrier had tacitly agreed to that approach by offering its flights for sale via the 
intermediary on the intermediary platform. It was not necessary for the air carrier 
to be aware of the specific amount of the commission charged by the intermediary 
company in each individual case. Rather, the court found that, within the 
parameters of a fair balance of interests it had to suffice that the air carrier was 
aware of an agency commission being charged at all (AG Eilenburg 14.5.2021, 2 
C 706/20 = BeckRS 2021, 12201). 
18 (b) The Amtsgericht Frankfurt am Main (Local Court, Frankfurt am Main, 
Germany) declared its position in light of the judgment of the CJEU to be that 
commissions were, in principle, to be reimbursed by the air carrier concerned in 
order to guarantee the highest possible degree of consumer protection. However, 
the court held, it could not have been intended that an air carrier would be able to 
plead ignorance where it knowingly avoids knowledge of the specific commission 
charges (AG Frankfurt am Main 13.7.2021, 31 C 736/21 [96], published on 
dejure.org). 
19 (c) The Amtsgericht Köln (Local Court, Cologne Germany), in response to an 
airline’s objection that a commission had been set without its knowledge, declared 
VEREIN FÜR KONSUMENTENINFORMATION 
 
7 
it to be obvious that a travel agency operating commercially in the market would 
charge a commission when an activity was carried out. It was not apparent to the 
court why the airline should have been unaware of that fact, and the airline had 
not provided an adequate explanation. In so far as the airline may have no prior 
knowledge of the amount of the arrangement fee set in a particular case, that was 
irrelevant. The court found that it could not be inferred from the decision of the 
CJEU that such exact knowledge of the amount was required, especially given 
that, if it were, the basic obligation, accepted by the CJEU, to reimburse the 
commission under Article 8(1) of the Air Passenger Rights Regulation would be 
meaningless and the airline could circumvent that obligation by taking suitable 
precautions (AG Köln 17.11.2021, 117 C 128/21 = BeckRS 2021, 47798). 
20 (d) Referring to the judgment of the CJEU, the Landgericht Landshut 
(Regional Court, Landshut, Germany), in the case of an airline which has no 
influence over whether and in what amount the travel agency chosen by the 
passengers charges a commission but which ‘knowingly and willingly – without 
any further authorisation being required – releases its tickets for sale by travel 
agencies from a global reservation system in the knowledge that the travel 
agencies sell the tickets to final customers at prices the travel agencies set 
themselves’, took the view that knowledge of the specific amount of the 
arrangement fee charged by the travel agencies was not necessary (LG Landshut 
3.12.2021, 14 O 2303/21 = BeckRS 2021, 55342). 
21 (e) By contrast, the Oberlandesgericht München (Higher Regional Court, 
Munich, Germany), ruling on the appeal against the abovementioned judgment of 
the Regional Court, Landshut, inferred from the considerations of the CJEU in 
Harms that ‘what matters is the air carrier’s specific knowledge regarding how the 
price of the ticket sold was set’. Contrary to the view of the Regional Court, 
Landshut, the abstract possibility or probability, accepted by the air carrier, of a 
fee charged by the travel agency at an amount unknown to the air carrier did not 
suffice. Only in so far as the air carrier is aware that a commission paid by it or an 
arrangement fee collected with its knowledge by the travel agency is reflected in 
the ticket price is it appropriate for the air carrier to reimburse those amounts as 
part of the ticket price if the flight is cancelled. Otherwise, it would be appropriate 
not to treat arrangement fees as part of the ticket price, because it was the 
passenger who had recourse to the intermediary when booking tickets, with the 
result that the charging of arrangement fees must in principle be seen as part of 
that contractual relationship (OLG München 20.7.2022, 20 U 8835/21e = BeckRS 
2022, 17623). 
22 In the present case, the lower courts also differ in their interpretations of the CJEU 
judgment. While the court of first instance considers it unnecessary for the air 
carrier to know the specific amount of the commission, the court ruling on the 
appeal on the merits takes the opposite view. 
23 In the assessment of this Chamber, clarification from the CJEU is necessary to 
guarantee uniform application by the courts of the Member States of its Harms 
REQUEST FOR A PRELIMINARY RULING OF 13. 12. 2023 – CASE C-45/24 
 
8  
judgment in future. It would seem obvious to this Chamber that the air carrier 
cannot object that it did not know the specific amount of the commission, unless 
the commission was unusually high, which would be for the air carrier to prove. It 
is clear that an air carrier must assume that a commercial ticket agency with which 
it collaborates normally only works for a commission. 
Supreme Court 
Vienna, 13 December 2023 
[…]