Germany: Appellate Court Rules On Promotion Of Air Fares And Price Transparency

Last Updated: 2 October 2008
Article by Ulrich Steppler and Christian Kusulis

Air passengers expect to be allowed to check in a reasonable amount of luggage without being charged an additional fee, irrespective of the price of their ticket. A recent decision confirms that where a flight is advertised at a certain price "including taxes and fees", but an additional tariff will be levied for each item of hold baggage, the airline must make specific reference to these additional costs in its advertisements.(1)


The applicant in these interim proceedings was an industry association that is dedicated to fighting unfair competition. The respondent provides air transport services and had advertised flights in a newspaper and online at prices "starting from ...". The headline in the newspaper advertisement read: "On the road at sensational prices." Underneath, several destinations were listed in a chart together with the relevant prices. Above this chart was stated: "Single flights starting from ..." and at the bottom of the column was further noted: "Including taxes and fees." Online, the respondent advertised a single flight from Friedrichshafen to Pisa or Dublin at prices "starting from €25.59 including taxes and fees".

According to its conditions of carriage, the respondent charged for the carriage of hold baggage at a rate of €4.50 per item for online bookings from September 1 2006, or €7 if paid at the airport. This charge was levied separately for outbound and inbound flights. The fees applied to a total luggage weight of 20 kilograms (kg) per person; where this figure was exceeded, a fee of €8 for each additional kilogram was charged.


The applicant objected to the advertisements as misleading and asserted a right to forbearance. In an ex parte injunction issued on September 26 2006 the Hamburg Regional Court enjoined the respondent from mentioning flight prices in advertisements without indicating that a fee was charged for each piece of hold baggage. In a ruling issued on December 20 2006 the court confirmed the injunction.

The respondent appealed against the judgment, while the applicant requested that it be maintained insofar as it related to advertisements actually placed by the respondent. The applicant prevailed.


The appellate court ruled that the applicant's motion requesting a cease and desist order – as clarified in the appeal proceeding – was founded on the basis of Sections 5, 8 and 3 of the Act against Unfair Competition. The court stressed that the average consumer would not expect an additional fee to apply to each item of hold baggage where the prices advertised had been stated as inclusive of taxes and fees. In such cases the average consumer would assume that - at least for 'normal' luggage - no further costs would be incurred.

In particular, when prices are advertised as "starting from" a certain price, the marketplace would recognize that some flights were being offered for a higher, unspecified price. At the same time, the average consumer would understand that the price advertised applied to a particular part of the offer. According to the court, in this particular case the marketplace would understand the respondent's advertisement for flights "starting from..." to indicate that the price of a particular flight would depend on the place of departure/destination (not mentioned in the advertisement) and/or the booking date. In other words, the specific price quoted would be available only in the best cases. However, the average consumer would not expect that in addition to the "starting from ..." price, a fee for hold baggage would be charged. The statement "including taxes and fees" rather pointed in the opposite direction, supporting an assumption that no further fees would be incurred.

In the Senate's view, there were insufficient grounds to support a conclusion that in the case of cheap flights, the marketplace is aware that passengers will always have to pay extra for hold baggage. Therefore, the court concluded that regardless of the price paid for the flight, passengers do not view a normal amount of hold baggage as an 'extra' for which an additional fee must be paid.


When advertising flight prices, statutory requirements and the criteria developed in legal practice must be observed.

The airline must advertise the final price to end consumers. The price stated must include all price components. Net prices "plus value added tax" or "plus airport landing fee", for example - in other words, prices that do not indicate the full total that will be charged - would violate Section 1(1) of the Ordinance on the Quotation of Prices.

If no reference is made to airport landing or other fees, the advertisement and the violation of the Ordinance on the Quotation of Prices at the same time constitute a violation of the Act against Unfair Competition. As a consequence, in such cases a competitor may generally assert a right to forbearance.

In the case of internet bookings, the courts are less strict. Within the online context, the consumer need not necessarily be informed of the final price at the first stage of the booking process, if the final price can be calculated only as the process progresses and the consumer is informed of that fact.

Finally, if insufficient numbers of tickets are available at the cheapest price advertised, the advertisement will also be misleading under Section 5(5) of the Act on Unfair Competition.

In this case the court rightly ruled that the average consumer does not expect to be charged for each single item of luggage that he or she wishes to check in. A free baggage allowance of between 15kg and 20kg is still considered the market standard, irrespective of the price of the ticket. If an airline wishes to deviate from the market standard, it may do so, but in that case it must make clear in its advertisements that it will charge for hold baggage.

However, the market standard assumed by the appellate court may yet change - and perhaps sooner rather than later. Certain airlines already charge for all hold baggage and this number will surely increase. The rise in jet fuel prices is affecting not only pricing, but also marketing and distribution.

In the meantime, the EU Regulation on Common Rules for the Operation of Air Services in the Community has been adopted at the second reading. The regulation states that:

"Air fares published in any form, including on the Internet, which are addressed directly or indirectly to the travelling public shall include all applicable taxes, non-avoidable charges, surcharges and fees known at the time of publication."

Therefore, market standards may change, but the airlines must still make clear what the final price is.


(1) Hanseatic Appellate Court, judgment of September 20 2007 (File 3 U 30/07).

(Ulrich Steppler and Christian Kusulis)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.