Unfair Contract Terms Directive, Article 3, 1.

An airline passenger had a right to claim compensation from the airline for a more than three-hour delay. The passenger had transferred the claim to a private company but according to the contract between the passenger and the airline, such a transfer was not valid. The court applied an unfairness test on the specific term in the contract limiting the consumers enforcement of their rights.

In the contract between an airline and its passengers, article 15(3) stated that the passenger could not transfer claims to others. However, a passenger did transfer his claim to a private company, and this company took the airline to court claiming compensation. For the court of appeal only the question regarding the transfer was to be settled. The court then had to determine whether article 15(3) of the contract was unfair.

Is the terms and conditions of the airline a part of the contract between the airline and the passenger? Can an airline prevent passengers from transferring their claims to others?

The court stated that the terms and conditions were agreed between the parties through a so-called ‘clickwrap’ (ticking off a box is necessary to buy the tickets), and thus part of the contract.

The court, however, found that article 15(3) limits the consumer’s access to act regarding claims in the same way as several of the examples mentioned in Directive 93/13 on Unfair Terms states e.g. litra a, b and q of the annex to the Directive. Claims such as the one in the case are often small and therefore relevant to transfer and the practical inconvenience such a transfer might cause for the airline is no different from other changes of creditor.

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Ingen resultater

Ingen resultater

The Court of Appeal upheld the First Instance Court’s judgement and found the term unfair. Through this judgement, the Court establishes that an airline cannot prevent a consumer from transferring his claims regarding compensation.