A single formal notice – effects of case law on practice – Commentary



Airlines often have to struggle with the indefinite legal term “one booking”. These issues were illustrated in recent litigation before the Frankfurt District Court.(1)


A booking has been made on the homepage of airline A, the contracting carrier. The outbound flight was to be operated by carrier B under a codeshare agreement, and the return flight was to be operated by carrier A. The airlines had an agreement that ticket fees would only be paid to airline B only if the flight took place. However, airline A canceled the two flights linked to the reservation and airline B did not receive its payment.

Knowing his contractual partner, the passenger approached airline A and requested a refund. Airline A reimbursed the passenger in the form of a travel voucher. The passenger then assigned his claim (which had already been satisfied by the voucher) to C GmbH, a company specializing in the reimbursement of ticket costs for canceled flights.

C GmbH sued airline B in the Frankfurt District Court for full reimbursement of the ticket costs for the outward and return flights.

The defendant argued before the Court that it lacked passive legitimacy and defended itself by objecting that the claim had been satisfied by the travel vouchers. Regarding the lack of passive legitimacy, it has been argued that the passenger’s decision to refund the ticket price has the effect of terminating the contract and that the contract should then also be settled under the law of obligations. Accordingly, the EU Flight Compensation Regulation(2) would not apply due to the absence of an existing contract of carriage, and therefore also the absence of a confirmed reservation.

In this case, however, the contract had been concluded with airline A, which was why it owed the reimbursement in accordance with national regulations. This is a classic case insofar as there was a difference between the claims of the opposing parties under the law of obligations and the claims under Article 8 of the European regulation on compensation for flights. This issue has arisen in case law regarding the differences between creditors – namely, the booking party and the passenger – but it has been resolved differently by different jurisdictions.(3)

The defendant airline further asserted that the reimbursement of the plane ticket due to the issuance of the travel voucher caused the claim to lapse.

Airline A was named in the litigation. However, he did not appear in court to fight alongside the accused.


The Court held that the reservation was a one-time reservation. Therefore, the claim could be brought against both air carriers. The refund process could not be passed on to the consumer. Furthermore, the defendant had not sufficiently argued that the voucher had been accepted voluntarily and the written form requirement had not been sufficiently explained. A reference to the defendant not being able to explain the process, which was beyond his perception, was again dismissed with the well-known consumer protection argument.


The Court’s opinion is devoid of any dogmatic principle and is only intended to cause no disadvantage to the passenger by passing on the refund process. This has the effect of assigning two requests and therefore a double assertion.

This assumption alone is incorrect in this case, because it was not the passenger himself who asserted his claim, but rather a debt collector. The passenger had nothing more to do with the proceedings in this case; he no longer had the right to complain.

Furthermore, the question arises: if the passenger knew who to contact for reimbursement, what disadvantage would he have suffered? After the cancellation, the passenger had deliberately turned to airline A, his direct contractual partner. It is doubtful whether the passenger was actually aware that Airline B was to operate a partial flight under the codeshare agreement.

The reason why air carrier B should now reimburse the cost of tickets which it did not receive itself is not apparent, at least under national contract law regulations. It should have been obvious that the interpretation made would lead to completely absurd results.

According to the Court, the passenger could assert his rights both against air carrier A and against air carrier B. The passenger originally had only one contracting party and was not entitled to claim the other under national law. The Court decided that the passenger could assert his claims twice, which indeed happened in this case. This results in overcompensation, which is not desirable for the German legislator. This is also not covered by the EU Flight Compensation Regulation and cannot be justified from a consumer protection point of view. Compensation for damages should place the person who suffered the damage in the same situation in which he would have been if the harmful event had not occurred, and not in a better one. The Court also failed to consider the fact that Air Carrier B:

  • had not received any plane tickets;
  • had not been involved in the reservation and cancellation process; and
  • had no influence on the reimbursement process.

A refund was therefore not possible. For a refund, a payment should have been made first. This was unquestionably not the case.

The proceedings in this case also illustrate considerable procedural problems. It was, for example, not possible to show how the reimbursement of the voucher took place with airline A. Likewise, it was not possible for the defendant to present a substantial argument in this regard and to prove that the passenger had voluntarily requested the voucher.

How should Air Carrier B now prove that an enforcement effect actually occurred by sending the voucher to the passenger? After all, it is only possible to make statements about facts that are the subject of a party’s own perception. Airline B has no knowledge of how Airline A’s refund process works.

In this regard, this case study clearly shows how result-oriented case law – already flawed in its basic assumption – can increasingly soften national law until it consists of nothing more than words of consumer and passenger protection order. Even in legal education, great importance is attached to the dogmatic interpretation of legal texts, as this serves legal certainty and the predictability of judicial decisions. Why legal dogmatism has not been applied here in the interpretation of the EU Flight Compensation Regulation remains unanswered.

For more information on this, please contact Stefan Weckenmann at Arnecke Sibeth Dabelstein by phone (+49 69 97 98 85 0) or by e-mail ([email protected]). The Arnecke Sibeth Dabelstein website can be accessed at www.asd-law.com.


(1) District Court of Frankfurt am Main, Ref 31 C 2402/21 (74).

(2) Regulation (EC) No. 261/2004.

(3) District Court of Erfurt, Ref 4 C 1495/20.


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