Originally Posted by
bender1057
Very interesting questions, indeed.
BTW, just another ruling by the ECJ (
C-146/20):
"Article 2(b) of Regulation No 261/2004 must be interpreted as meaning that an air carrier may be classified as an ‘operating air carrier’ within the meaning of that provision in respect of a passenger if that passenger has concluded a contract with a tour operator for a particular flight operated by that air carrier without that air carrier having confirmed the hours of the flight or without that tour operator having made a booking for that passenger with that air carrier."
Moreover, the ECJ explicitly states (in number 61):
"It should also be stated that, in cases where the operating air carrier is required to pay compensation to passengers pursuant to Regulation No 261/2004 due to the conduct of the tour operator, that carrier has the possibility to seek compensation from the tour operator for any damage suffered in accordance with Article 13 of that regulation."
kiwi.com is not legally a tour operator, that is a specific term that has a specific legal meaning. There
is a tour operator that operates under a brand name KIWI in the same country, (ckkiwi.cz) however that company predates kiwi.com by literal decades.
Originally Posted by
Dave_C
I think the issue that everyone is struggling with here is the role of the agent.
The person in this case has a contract for a journey from A to B. The agent has cobbled together a variety of different flights via C and D to make this possible. What appears to be a limitation of the current IATA 'system' is that seemingly the travel agent has no liability here.
We're finally seeing consumer protection law catching up with the one-sidedness and unreasonable T&Cs in so many airlines contracts of carriage.
I'd argue that the judgement actually makes sense. It seems quite sensible for the airline to recover (via an ADM) whatever costs they deem appropriate from the agent. But ultimately the agent created a journey and formed a contract, fulfilled via the various different airlines. The agent is on the hook for ensuring the passenger gets to their final destination.
Nobody is arguing against kiwi being on the hook. What is absurd is to put Eurowings into a position of being legally responsible for fulfillment of a contract of carriage it had no intention to sign or facilitate. kiwi.com strings together flights not just where airlines don't offer this by themselves, but literally against the airlines expressly stated wishes.
As long as the service exists only as a way to facilitate searching and individual booking such as pax could do themselves by doing the legwork, I don't have an issue with it existing (I do have other complaints about kiwi.com, but not this).
However this ruling now means that an entity can enter another entity into a contract against its consent in such a manner that the other entity can not prevent by any means other than ceasing trading, and I just don't see how such a thing can be allowed to exist.