The second sentence of article 23(1) of Parliament and Council Regulation (EC) No 1008/2008 of 24 September 2008 on common rules for the operation of air services in the Community meant that, in the context of a computerised booking system such as that at issue, the final price to be paid had to be indicated: (i) whenever the prices of air services were shown, including when they were shown for the first time; and (ii) not only for the air service specifically selected by the customer, but also for each air service in respect of which the fare was shown.

The Court of Justice of the European Union so held on a request for a preliminary ruling in German proceedings between Air Berlin plc & Co Luftverkehrs KG, an air carrier, and the Bundesverband der Verbraucherzentralen und Verbraucherverbände—Verbraucherzentrale Bundesverband e V (Federal Union of Consumer Organisations and Associations) concerning the way in which air fares were presented in the computerised booking system of Air Berlin. The request concerned the interpretation of the second sentence in article 23(1) of Regulation No 1008/2008 which provided that the final price to be paid was at all times to be indicated and was to include the applicable air fare or air rate as well as all applicable taxes, and charges, surcharges and fees which were unavoidable and foreseeable at the time of publication.

Until the end of 2008, Air Berlin’s booking system was organised in such a way that, having selected a journey and a date, the customer would find, as a second step, a table listing the possible flight connections for the chosen date, and showing departure and arrival times and two fares for each flight. A box below that table showed the taxes and charges applicable to the air service selected and the fuel surcharge, while the “price per person” including all those elements was set within a border. A double asterisk next to the box explained, with reference to the conditions applicable, that a service charge not yet included in the final price might apply. After entering the necessary personal details as a third step, the customer could, in the fourth step, establish the final price of travel, including the service charge. As a result of the entry into force of Regulation No 1008/2008 on 1 November 2008, Air Berlin modified the second step of its booking system so that the air fare for the selected air service was displayed in the table together with the departure and arrival times and, separately, taxes and charges, the fuel surcharge and the total amount of those separately indicated elements. A box below the table showed the price calculated on the basis of those figures, the service charge and, below that, the final price per person for the selected flight. The Bundesverband took the view that that presentation of prices did not meet the requirements laid down by the second sentence of article 23(1) of Regulation No 1008/2008, and brought an action against Air Berlin by which it sought an order requiring Air Berlin to discontinue this practice, and reimbursement of the costs incurred in connection with a warning notice relating to that action. The application of the Bundesverband having been granted by the court of first instance, whose judgment was upheld on appeal, Air Berlin brought an appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice), which referred a number of questions to the Court of Justice for a preliminary ruling.

THE COURT (Fifth Chamber) held that it followed from the wording of the second sentence of article 23(1) of Regulation No 1008/2008 that the final price to be paid had to be indicated “at all times”, without any distinction being made between the moment when that price was indicated for the first time, the moment when the customer selected a particular flight, or the moment when the contract was finally concluded. It should not be inferred from the expression “at the start of any booking process” used in the fourth sentence of article 23(1) of Regulation No 1008/2008 that the expression “at all times” in the second sentence of article 23(1) meant that the final price had to be indicated only at the start of the booking process. The obligation laid down in the second sentence of article 23(1) to indicate the final price “at all times”, which included unavoidable and foreseeable costs, arose from the moment the air fares were published in any form, even before the start of the booking process. Moreover, the obligation to indicate the final price “at all times” applied to all forms of publication of air fares, including fares proposed for a series of air services presented in the form of a table. Consequently, indicating the final price for the only flight specifically selected was not sufficient to satisfy that obligation.