Compensation is also due if the travel agent commissioned by the passenger claims to be the passenger and subsequently does not forward the information received to them. Whether the airline concerned knew that it was not the passenger but a commissioned travel company behind the booking is irrelevant for liability.

A passenger books a flight through an online travel agent. Since the airline in question does not cooperate with the travel agent or even prevents bookings from them, the travel agent simply pretends to be a passenger when booking online, books in their name and stores an automatically generated e-mail address.

The flight in question is subsequently cancelled. The air carrier will then immediately inform the passenger at the email address provided. Or rather, it thinks it understands him. In fact, only the travel agent has access to the specified e-mail address and does not subsequently forward the cancellation information. The airline, on the other hand, believes that it has informed the passenger and does not know anything about the involvement of the travel agent. The passenger then asserts claims for compensation. He only found out that the flight was canceled when he checked in online and was therefore not informed at least two weeks before departure. 

ECJ makes liability for the behavior of others possible

The district court of Geldern in Germany initially dismissed the passenger's claim. The airline fulfilled its obligation to provide information in a timely manner by sending the notification to the email address provided. The Court of Appeal subsequently stayed the proceedings and referred the matter to the European Court of Justice. The latter judged the situation differently: the only thing that mattered was whether the passenger was actually informed about the cancellation in good time. The fact that the travel agent was commissioned exclusively by the passenger and also worked for him, while the air carrier neither worked with the travel agent nor knew that he and not the passenger himself had booked was apparently irrelevant for the ECJ.

Martin Klemm, lawyer and partner at Brenner & Klemm Rechtsanwälte, is stunned by the decision: “The passenger commissions a travel agent, the travel agent subsequently fails to meet his obligations to his own customer and the airline should then foot the bill? There is nothing like that in all of European civil law.” As in comparable cases, the ECJ refers succinctly to the possibility of the airline to take recourse against the travel agent, Klemm continued. 

“On what legal basis should this be done? There is no contractual relationship between the travel agent and the airline, so the agent is not obliged to forward anything from the airline. Any claim for damages fails because of the lack of illegality.” The ECJ only states that the passenger rights regulation does not make recourse claims dependent on whether there is a contract between the agent and the airline. On the other hand, he leaves it open as to what should result in a claim for compensation.

"In truth, travel agents could offer their customers a new additional service," Klemm points out. This gives the passenger almost two weeks to rebook or otherwise reschedule, but they will automatically receive the compensation."