ECJ Rules That Airline Baggage Fees Are Ok, But Cannot Charge Fee for Hand Baggage

In a judgment that will bring a sigh of relief to airlines flying from Spain, the European Court of Justice has ruled that a Spanish law that required airlines to carry passengers' checked-in baggage at no additional fee is inconsistent with the EU pricing freedom regime under Chapter IV of Regulation No 1008/2008. The ruling comes in response to the case Vueling Airlines v. Instituto Galego de Consumo de la Xunta de Galicia1 (the Veuling Airlines case).

In the Veuling Airlines case, Veuling Airlines (Veuling) was fined EUR 3,000 for breaching Article 97 of Law 48/1960 on air navigation (the LNA). The LNA provides:

"As part of the price of the ticket, the carrier is required to carry passengers and their baggage, subject to weight limits established by regulation, irrespective of the number of items and their size"

In August 2010, a passenger purchased a ticket with three companions from La Coruña (Spain) to Amsterdam (the Netherlands) on Veuling. The passenger checked in a total of two suitcases between the four passengers, and was charged a surcharge of EUR 40 (EUR 10 per suitcase per sector) to the base price of the tickets. The Spanish consumer protection court (the Instituto Galego de Consumo) took issue to the practice, and fined Veuling for breaching the LNA and various other provisions of Spanish consumer protection law.

Following several unsuccessful appeals in which Veuling contended that the EU's pricing freedom regime allows air carriers to charge additional fees for baggage (as is the case for many airlines), the Juzgado de lo Contencioso-Administrativo No 1 de Ourense (Spain) referred the question to the European Court of Justice.

The court ruled that the Spanish legislation was in fact inconsistent with the pricing freedom regime, and that airlines are entitled to charge an additional fee for checked in baggage. The court went on to state that hand baggage must be considered as constituting a necessary aspect of the carriage of passengers and that its carriage cannot, therefore, be made subject to a price supplement.

The judgment is good news (and a sensible outcome) for airlines who are subject to Spanish legislation, as it upholds the now-common practice of airlines charging passengers to place baggage in the hold. Airline counsel, however, should be wary of any proposals to charge passengers for their hand baggage, which would fall afoul of the EU legislation.

The full judgment of the ECJ is available here.

1. (Ley 48/1960 sobre Navegación Aérea) of 21 July 1960 (BOE No 176, of 23 July 1960, p. 10291), as amended by Law 1/2011 establishing the security programme of the State as regards civil aviation and amending Law 21/2003 of 7 July on air security (Ley 1/2011 por la que se establece el Programa Estatal de Seguridad Operacional para la Aviación Civil y se modifica la Ley 21/2003, de 7 de julio, de Seguridad Aérea) of 4 March 2011 (BOE No 55, of 5 March 2011, p. 24995)