The Hungarian low-cost airline Wizz Air received a defeat at the Schwechat District Court in the first instance: The Association for Consumer Information sued on behalf of two passengers for the repayment of flight tickets that were canceled in May 2020. In the first instance, the court recognized the loss of the business basis. The verdict is not yet legally binding.

The tickets on the Vienna-Lisbon-Vienna route were booked in February 2020, i.e. before the corona pandemic. The passengers announced their withdrawal from the contract of carriage two days before departure and stated, among other things, that the basis for the business was no longer applicable as Portugal was in a lockdown. Wizz Air did not acknowledge this and, according to a written judgment, even claimed that the cancellation, which was transmitted via their homepage, had never been received. Furthermore, the company relied on the fact that there was no travel ban between Austria and Portugal vv, so that the plaintiffs could have taken the flights.

Choice of law clause ineffective due to lack of transparency

In addition, according to the court's decision, Wizz Air stumbled across its own terms and conditions. Although it is stated that Hungarian law applies to disputes, the Schwechat District Court is of the opinion that the conditions of carriage have not been sufficiently made known and have therefore not been effectively accepted. It was also determined that Hungarian law is not applicable. Austrian law applies. In addition, the court added that it would consider Wizz Air's choice of law clause to be non-transparent and therefore ineffective, even if it had been validly agreed.

The court also confirmed that the contract should be terminated due to the "loss of the business basis" as a result of the COVID-19 pandemic. At the time of booking at the beginning of February 2020, it was not foreseeable for consumers that there would be lockdown measures in Europe. After a travel warning from the Ministry of Foreign Affairs, the start of the journey was in any case unreasonable for passengers. In addition, a 14-day quarantine obligation would have applied after the return trip to Austria. Consumers therefore had a cancellation-free right of withdrawal and Wizz Air has to reimburse the entire flight price.

“In order to be able to successfully invoke the so-called loss of the business basis, the change in circumstances at the time the contract was concluded must have been unforeseeable. If consumers now book a flight for the next few months, they will usually no longer be able to argue that the COVID-19 pandemic and the associated restrictions were not foreseeable, ”says Beate Gelbmann, Head of the Complaints Department at the VKI . The judgment in the original can can be downloaded in PDF format from this link.