Austria: Appelate court decides on "fly all or pay up" clauses

Michael Wukoschitz's picture

In their General Conditions of Carriage, Lufthansa and Austrian Airlines had incorporated clauses which provided that a passenger who doesn't use all the flight coupons of his ticket or doesn't use them in the original order can be required to pay up to the tariff applicable at the time of booking for the actual routing otherwise the airline would be entitled to deny boarding. Thus, a passenger who had purchased a low fare return ticket and then only used the outward flight could be required to pay up to the more expensive one way fare.

In two parallel decisions, the Oberlandesgericht Wien (Vienna Court of Appeals) has recently held that these clauses were unexpected and detrimental to the passengers: no everage passenger would reasonably expect to have to pay more if he uses less of the contractual transportation services. The court regarded a combination of flights as severable services. The passenger had no obligation to use all the services contracted for and therefore was entitled to use only a part of the combination of flights. A vacant seat on parts of the flights would not constitute any damage to the airline as the passenger had paid for it, anyway.

The clauses therefore were held unlawful and the court ordered the airlines to cease and desist from their further use. However, because of the general importance of the issue the court admitted further appeal to the Supreme Court (OGH). The judgments therefore are not final yet.

Cases:

Verein für Konsumenteninformation v. Austrian Airlines AG, OLG Wien 23.05.2012, 15 R 203/11z (judgement available here>>)

Verein für Konsumenteninformation v. Deutsche Lufthansa AG, OLG Wien 29.05.2012, 1 R 96/12p (judgement available here>>)

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