OPINION OF ADVOCATE GENERAL
SAUGMANDSGAARD ØE
delivered on 28 June 2018 (1)
Case C‑330/17
Verbraucherzentrale Baden-Württemberg eV
v
Germanwings GmbH
(Request for a preliminary ruling
from the Bundesgerichtshof (Federal Court of Justice, Germany))
(Reference for a preliminary ruling — Transport — Regulation (EC) No 1008/2008 — Common rules for the operation of air services in the European Union — Article 2(18) and Article 23(1) — Information — Need to indicate air fares ‘in euro or in local currency’ — Possible obligation to indicate air fares in a particular currency — Relevant criteria, if any, for identifying that currency)
I. Introduction
1. This request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany) concerns the interpretation of Article 2(18) and Article 23(1) of Regulation (EC) No 1008/2008. (2)
2. The request has been made in proceedings between a consumer organisation and an air carrier established in Germany concerning an allegedly unfair business practice on the part of the latter, which consisted in selling via its website, in particular to a consumer in Germany, a flight from the United Kingdom, indicating the air fare only in pounds sterling.
3. In essence, the referring court asks the Court about the wording of the obligation on the part of air carriers operating within the European Union to provide information on prices, pursuant to Article 23(1) of Regulation No 1008/2008 and in the light of the definition of ‘air fares’ in Article 2(18) of that regulation, according to which air fares must be ‘expressed in euro or in local currency’.
4. More specifically, the Court is asked to determine, first, whether, where air carriers intend to indicate the price of the services offered to potential passengers in a currency other than the euro, they remain free to choose the local currency or, on the contrary, are required to use a specific currency and, second, in the latter case, which criteria should be used to determine that currency.
5. In this Opinion, I will set out the reasons why I believe that the aforementioned provisions must be interpreted as meaning that there is no obligation for the air carriers in question to indicate their air fares in a local currency predetermined by the EU legislature.
6. In the alternative, in the event that the Court finds there to be such an obligation under those provisions, I will make some observations on the relevant criteria for determining the local currency which should be used for that purpose.
II. Legal context
7. According to recital 16 of Regulation No 1008/2008, ‘[c]ustomers should be able to compare effectively the prices for air services of different airlines. Therefore the final price to be paid by the customer for air services originating in the Community should at all times be indicated, inclusive of all taxes, charges and fees. Community air carriers are also encouraged to indicate the final price for their air services from third countries to the Community’.
8. Article 2(18) of Regulation No 1008/2008 defines ‘air fares’, for the purposes of that regulation, as ‘the prices expressed in euro or in local currency to be paid to air carriers or their agents or other ticket sellers for the carriage of passengers on air services and any conditions under which those prices apply, including remuneration and conditions offered to agency and other auxiliary services’.
9. Article 23 of that regulation, entitled ‘Information and non-discrimination’, provides in paragraph 1:
‘Air fares and air rates available to the general public shall include the applicable conditions when offered or published in any form, including on the Internet, for air services from an airport located in the territory of a Member State to which the Treaty applies. The final price to be paid shall at all times be indicated and shall include the applicable air fare or air rate as well as all applicable taxes, and charges, surcharges and fees which are unavoidable and foreseeable at the time of publication. In addition to the indication of the final price, at least the following shall be specified:
(a) air fare or air rate;
(b) taxes;
(c) airport charges; and
(d) other charges, surcharges or fees, such as those related to security or fuel;
where the items listed under (b), (c) and (d) have been added to the air fare or air rate. Optional price supplements shall be communicated in a clear, transparent and unambiguous way at the start of any booking process and their acceptance by the customer shall be on an “opt-in” basis.’
III. The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court
10. Germanwings GmbH is an air carrier established in Germany. In September 2014, a consumer in Germany purchased a flight from London (United Kingdom) to Stuttgart (Germany) on the website of that undertaking ‘www.germanwings.de’. The fare for the flight was indicated solely in pounds sterling and, after booking the flight, the consumer received an invoice on which the air fare and other costs were also indicated in pounds sterling.
11. Alerted to this fact by the consumer in question, the Verbraucherzentrale Baden-Württemberg eV (consumers’ association of the Land of Baden-Württemberg, Germany) (‘the Verbraucherzentrale’) brought an action for a prohibitory injunction against Germanwings before the Landgericht Köln (Regional Court, Cologne, Germany), on the ground that the failure to indicate the price in the local currency in Germany (euro), in such circumstances, amounted to unfair conduct. The defendant contended that its competitors also gave the fares for flights from London in pounds sterling. By decision of 22 April 2015, that court allowed the applicant’s application.
12. Following an appeal against that decision by Germanwings, by decision of 4 September 2015 the Oberlandesgericht Köln (Higher Regional Court, Cologne, Germany) set aside the decision of 22 April 2015 on the grounds, in particular, that Article 23(1) of Regulation No 1008/2008 states only that the final price must be indicated, without specifying in which currency, and that it cannot be inferred from the definition in Article 2(18) of that regulation that the ‘local currency’ must always be that of the country in which the air carrier is established.
13. On appeal by the Verbraucherzentrale, by decision of 27 April 2017 received at the Court on 2 June 2017, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Must air fares for intra-Community air services, to be indicated under the second and third sentences of Article 23(1) of Regulation No 1008/2008, be indicated in a particular currency, in so far as they are not expressed in euros?
(2) If Question 1 is answered in the affirmative:
In which local currency may the fares referred to in Article 2(18) and the second and third sentences of Article 23(1) of Regulation No 1008/2008 be indicated, where an air carrier established in one Member State (in this case Germany) advertises and offers an air service with a place of departure in another Member State (in this case the United Kingdom) to a consumer on the internet?
In this connection, is it decisive that an internet address is used with a country-specific top-level domain (in this case www.germanwings.de) that refers to the Member State in which the air carrier is established, and the consumer is present in that Member State?
Is it relevant that all or the overwhelming majority of air carriers indicate the fares in question in the local currency used at the place of departure?’
14. Written observations were lodged by the Verbraucherzentrale, Germanwings and the European Commission. Only Germanwings and the Commission presented oral argument at the hearing on 19 April 2018.
IV. Analysis
A. The possible obligation to indicate air fares in a particular local currency when they are published (first question)
15. By its first question, the referring court asks in essence whether Article 23(1) of Regulation No 1008/2008, read in conjunction with Article 2(18) of that regulation, must be interpreted as meaning that, in the context of air services provided within the European Union which are governed by that regulation, (3) ‘air fares’ must be indicated in a local currency predetermined by the legislature ‘in so far as they are not expressed in euro’. (4)
16. Such a combined reading of Articles 23(1) and 2(18) is not immediately apparent from the wording of the first question referred. However, I take the view that it can be inferred from the considerations put forward by the referring court to explain that question, in particular in the light of the grounds of the decision challenged before it, (5) and from the wording of the second question referred, which follows on from the first question and which expressly associates those provisions.
17. Like Germanwings and, it seems, the Commission, (6) and contrary to the Verbraucherzentrale, I consider that the answer to the somewhat reworded question (7) should be in the negative for the following reasons.
18. I would point out at the outset that, in accordance with settled case-law, it follows from the need for a uniform application of EU law that, where a provision of EU law makes no express reference to the law of the Member States with regard to the meaning of a particular concept, (8) that concept must be given an autonomous and uniform interpretation, in respect of which it is necessary for the Court to consider not only the wording of the provision in question, but also the context in which it occurs and the objectives pursued by the rules of which it is part, as well as its origins. (9)
1. Interpretation in the light of the wording of the relevant provisions
19. In its order for reference, the Bundesgerichtshof (Federal Court of Justice) points out that no obligation to indicate air fares in a particular local currency can be expressly inferred from the wording of Article 23(1) of Regulation No 1008/2008. It considers that that circumstance would support the freedom of choice on the part of air carriers, as found by the court ruling on the appeal. I share that view.
20. I note that Article 23(1) seeks to impose an obligation to provide ‘information’, (10) on the part of air carriers offering flights from a Member State, and to set the scope of that obligation. In particular, the second and third sentences of Article 23(1), which are specifically referred to in the question referred, set out requirements relating to the indication of the ‘final price’ to be paid by the customer. (11) However, while that provision lists in detail the information which must be provided, (12) there is no mention of the currency in which that price should be indicated in order to satisfy the obligation laid down.
21. Nor does Recital 16 of Regulation No 1008/2008, which also refers to the need to inform customers of the final price in its entirety, state that a specific currency should be used to that end.
22. I would point out even at this stage that this is the case, even though the international dimension — not just the intra-Community dimension — of the requirements of transparency and the obligation to provide comprehensive information on prices, laid down in Article 23, was fully taken into account by the legislature (13) when drafting that regulation. (14)
23. So far as concerns Article 2(18) of Regulation No 1008/2008, which defines the concept of ‘air fares’ within the meaning of that regulation, it expressly refers to ‘prices expressed in euro or in local currency’, without specifying, however, what is meant by the last two words of that phrase, in particular without indicating whether it is the ‘local currency’ of a Member State (15) and especially, in the present case, without stating whether it is possible for air carriers to opt for the currency of their choice. (16)
24. The fact that the adjective ‘local’ is used in several language versions of that provision (17) does not appear to me to be a decisive factor. Even if such an adjective is, in my opinion, likely to reflect an idea of proximity more than the words referring to a country which are used in other versions, (18) it must be found that Regulation No 1008/2008 gives no indication as to what is meant by ‘local’ and what would be the criterion of proximity in that regard. (19) Moreover, even if that variation in terminology could be considered to be a decisive factor in the present case, it is settled case-law that where there is a divergence between the various language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part. (20)
25. I note that the phrase ‘prices expressed in euro or in local currency’, invoked by the referring court, is also used, without further clarification, in Article 2(19) to define the concept of ‘air rates’ similar to that of ‘air fares’. In my opinion, and in line with the opinion expressed by the Commission at the hearing, that similarity in terminology should be borne in mind when interpreting Article 2(18) in the present case. (21)
26. In addition, I observe that the concept of ‘final price’ referred to in Article 23(1) and recital 16 of Regulation No 1008/2008 is not equivalent to the concept of ‘air fares’ as defined in Article 2(18) of that regulation. (22) It is true that there is some overlap, since the first concept encompasses the second, (23) with the result that, in the present case, it is necessary to interpret those provisions in combination. (24) Nevertheless, as Germanwings and the Commission have pointed out, the elements of the ‘final price’ which are added to ‘air fares’ pursuant to Article 23 are not covered by Article 2(18), in so far as that article merely defines the latter concept, (25) which speaks against the argument that the wording ‘in euro or in local currency’ in Article 2 requires use to be made of a particular local currency so as to provide the information required by Article 23.
27. Above all, like Germanwings and the Commission, I would point out that the EU legislature refrained, in Article 23(1) of Regulation No 1008/2008, from giving clear guidance, and in particular from establishing specific criteria, for identifying the currency that air carriers should use to inform consumers of their fares. It did so even though it was manifestly aware of the fact that various local currencies would be used instead of the euro, as can be seen from the wording of Article 2(18) of that regulation, and despite ensuring that detailed rules were adopted with regard to the obligation on the part of air carriers to indicate at all times the prices of flights that they are selling in a complete and definitive manner. (26)
28. I consider that this deliberate lack of guidance on the currency to be used can be understood as reflecting the intention of the legislature not to impose specific constraints on air carriers in that regard. (27) My opinion is supported by the following considerations.
2. Interpretation in the light of the origins of the relevant provisions
29. The literal interpretation proposed above is, in my opinion, supported by an analysis of the development of the relevant provisions of Regulation No 1008/2008 in the course of the legislative deliberations that led to the current wording. There is no indication that the legislature intended, or even contemplated, introducing specific requirements relating to currency in connection with the rules set out in Article 23(1) of Regulation No 1008/2008.
30. I would point out that that provision is a recast of Article 4 of Regulation (EEC) No 2409/92 on air fares, (28) which previously imposed an obligation to disclose air fares, (29) which was, however, less precise and less strict than that currently in place.
31. The authors of Regulation No 1008/2008 clearly intended to strengthen, in Article 23, the obligation of air carriers to provide information in order to promote, on the one hand, better price transparency for passengers through the publication of air fares inclusive of all taxes, charges and other fees and, on the other, fair price behaviour through the avoidance of distortions of competition caused by a lack of transparency. (30) By contrast, there appears to be no question of requiring the use of a particular currency in that regard.
32. The only references to currency in the preparatory work on Regulation No 1008/2008 are those concerning the general definitions set out in Article 2. I note that the expression ‘prices expressed in euro or in local currency’ used in Article 2(18) and (19) of that regulation was already included, in essence, in the corresponding provisions of Article 2(a) and (d) of Regulation No 2049/92, which referred to ‘prices expressed in ecus or in local currency’. In my opinion, the replacement of the word ‘ecus’ with ‘euro’ in Regulation No 1008/2008 is simply due to the introduction of the euro as the single currency in certain Member States. (31)
33. So far as concerns the expression ‘in local currency’ which appears four times in Article 2 of Regulation No 2409/92, (32) the preparatory work on that regulation gives no indications to support the argument that the legislature had intended to require air carriers to use a specific local currency when indicating air fares. Conversely, it is clear that the initiators of that regulation sought to enable airlines to ‘provide sufficient choice of [air] services to the consumer at reasonable prices’. (33)
34. I observe that the wording ‘in local currency’ was also used, without any further clarification, in Articles 2(a) of the earlier instruments on fares for air services mentioned in the preamble to Regulation No 2409/92. (34) In that regulation, it supplemented, as an alternative, the wording ‘in ecus’, the only option initially considered by the Commission, (35) following a somewhat different amendment tabled by the European Parliament (36) and supported by the Economic and Social Committee. (37) At the hearing, the Commission stated that it did not have any details on the exact reasons for the successive changes made in order to arrive at the expression ‘the prices expressed … in local currency’ in Article 2(a) of Regulation No 2409/92, (38) and reproduced in Article 2(18) of Regulation No 1008/2008.
35. In any event, it is apparent, in my view, from the preparatory work referred to above that there was no question of adopting a rule, and even less so corresponding criteria for identification, which would require use to be made of a specific local currency in accordance with Article 23(1) of Regulation No 1008/2008. I suggest an approach that is not contradicted, but rather confirmed, by various contextual factors which will be analysed below.
3. Interpretation in the light of the context of the relevant provisions
36. In the first place, I note that Article 23(1) of Regulation No 1008/2008, on which the action brought by the applicant in the main proceedings is based, appears in Chapter IV of the regulation relating to ‘Provisions on pricing’, whereas Article 2(18), in which reference is made to ‘prices expressed … in local currency’, appears in Chapter I of the regulation relating to ‘General provisions’.
37. The material connection between those two provisions, as established in the order for reference, is not therefore obvious, even if the definitions set out in Article 2 apply to Article 23, and indeed to all the other provisions of that regulation, which justifies interpreting the latter article in the light of the former. (39) Moreover, I would point out that the concept of ‘air fares’ defined in Article 2(18) does not fully overlap with the concepts set out in Article 23(1). (40)
38. In that context, I consider that, in the absence of any express cross references between those provisions of Regulation No 1008/2008, it cannot be considered that, through the wording used in Article 2(18), the legislature intended to limit the choice of air carriers in terms of the local currency in which they must communicate the price information that they are required to provide under Article 23(1).
39. In the second place, I note that the referring court refers to the ‘pricing freedom’ enshrined in Article 22 of Regulation no 1008/2008 (41) in support of the argument that Article 23(1) does not require use to be made of a particular local currency. The Verbraucherzentrale contends that this freedom would not be impaired by the mere fact that air fares should be indicated in a specific currency, whereas Germanwings maintains that the rule as provided includes the freedom to choose the currency in which air fares are expressed.
40. Although I also support the aforementioned argument, I do not share, however, the point of view of Germanwings that Article 22 of that regulation should play a decisive role in the answer to the first question referred for a preliminary ruling. It is apparent from the Court’s case-law that the pricing freedom laid down in that article is the culmination of progressive elimination of price controls by Member States, since the objective of the liberalisation of the airline market was to achieve greater variety in supply and lower prices for consumers. (42)
41. The objective pursued by Article 22 of Regulation No 1008/2008 is the deregulation of the sector, (43) which enables air carriers to freely determine the value attributed to their services. In my opinion, it therefore has no bearing on the choice of the currency in which air fares should be communicated. Nevertheless, the spirit of liberalisation which underpins that provision, as the Commission has pointed out, (44) is indeed of such a nature as to support the interpretation that Regulation No 1008/2008 does not impose any constraints in that regard.
42. In the third place, as regards the more general context of Article 23(1) of Regulation No 1008/2008, I observe that, as mentioned by the Commission, Directive 98/6/EC, (45) which specifically concerns the indication of the prices of products offered to consumers, also does not contain any binding rules on the currency in which the prices to be paid must be indicated, even though that problem has not been concealed by the legislature. (46) Nor is there anything in that regard in Directive 2011/83/EU, (47) which aims to protect consumers — in particular in terms of price information — in the context of contracts with traders. (48)
43. The considerations set out above are, in my opinion, fully compatible with the teleological interpretation, which follows, of the provisions concerned by the present order for reference.
4. Interpretation in the light of the objectives of the relevant provisions
44. As the Court has already pointed out, it is clear from both the wording of Article 23 of Regulation No 1008/2008 and the language of paragraph 1 thereof that that provision ‘seeks to ensure, in particular, that there is information and transparency with regard to prices for air services from an airport located in a Member State and accordingly to contribute to safeguarding protection of customers who use those services’. (49)
45. In the same way, recital 16 of that regulation states that ‘[c]ustomers should be able to compare effectively the prices for air services of different airlines’. It adds that ‘therefore the final price to be paid by the customer’ for air services from an airport located within the EU ‘should at all times be indicated, inclusive of all taxes, charges and fees’.
46. According to the referring court and the Verbraucherzentrale, the objective of comparing effectively the prices set out in the first sentence of recital 16 would be undermined if it were permissible for air carriers to indicate air fares for a flight from within the EU in the currency of its choice. I do not agree with this point of view, nor do Germanwings or the Commission.
47. In the first place, I would point out that it seems to me, in the light of the origins of Article 23(1) of Regulation No 1008/2008, that strengthening the protection of customers (50) was indeed one of the objectives for the adoption of that provision, but that it also sought to secure more healthy competition between air carriers. (51) This dual concern is also apparent from relevant previous (52) and subsequent (53) instruments.
48. In my opinion, it would therefore be advisable to avoid an interpretation of that provision so broad that it would principally, or even exclusively, promote the interests of consumers, (54) without sufficient regard to the constraints weighing, expressly, on air carriers and the discretion enjoyed by them, by implication, in the light of that regulation.
49. In that regard, I note, in the second place, that in order to achieve the aforementioned objectives, the EU legislature restricted the pricing freedom granted to air carriers. It expressly obliged air carriers to provide comprehensive information on their air fares and the conditions attached and required air fares to be inclusive of all applicable taxes, charges and fees. (55)
50. Accordingly, Article 23(1) of Regulation No 1008/2008 lays down, in great detail, a whole series of requirements relating to the information which must be systematically communicated within that framework, (56) attaching possible sanctions to those requirements. (57) I would point out that the obligation to indicate at all times the final price to be paid promotes price transparency and counteracts the unfair conduct, previously practised by some air carriers, consisting in quoting incomplete fares at the beginning of the transaction and adding various price supplements just before its completion. (58)
51. Recital 16 of that regulation follows the same logic, indicating the elements that the final price must necessarily include, as confirmed by the second sentence of that recital, which seeks to clarify the wording of the first sentence, which was wrongly invoked in isolation by the Verbraucherzentrale.
52. Contrary to what the Verbraucherzentrale seems to claim, the objective pursued by those provisions is not to enable customers to assess the relative costs of air fares in the currency they know best, but to promote transparency to the effect that all price elements are included in the final price and, therefore, to give customers a real opportunity for comparison. In addition, I share the opinion expressed by the Commission at the hearing that there is nothing to indicate that the aim of Regulation No 1008/2008 to protect consumers includes the protection of consumers against the risk of losses related to foreign exchange transactions.
53. Moreover, if the use of a specific currency had seemed to be a decisive factor for achieving the objectives of ensuring that there is information and transparency with regard to the prices for air services, the authors of Regulation No 1008/2008 would have made sure to create that rule and define the criteria for identifying the relevant currency. As the legislature did not do so, I consider that it is not for the Court to do so instead, especially since the adoption of such a rule was not, in my opinion, necessary to ensure the protection of customers.
54. I would point out, in the third place, that, in addition to the difficulties relating to establishing appropriate criteria, (59) it is not, in my opinion, certain that requiring use to be made of a specific local currency better allows consumers to assess effectively the prices for air services of different airlines, in accordance with the objective of effective comparability and price transparency pursued by Article 23(1) of Regulation No 1008/2008, read in the light of recital 16 of the regulation. (60)
55. It is true that, even though it appears not to have been provided for in Regulation No 1008/2008, a limit on the number of local currencies in which air carriers may express air fares, as suggested by the Verbraucherzentrale, would prima facie make it easier to compare offers made for the same service.
56. However, assuming that the Court accepts the existence of an obligation to use one or other local currency, the inconvenience caused by the use of different currencies would nonetheless not completely disappear. As the Commission has pointed out, if the wording of Article 2(18) of that regulation were to be considered to have decisive effect in that regard, the alternative wording ‘prices expressed in euro or in local currency’ in that provision could be understood as still allowing air carriers to express their prices in euros, (61) while their competitors could opt instead for the particular local currency. Accordingly, by virtue of it being possible for prices for air services to be indicated in two different ways, the effective comparison of prices could in theory remain difficult for consumers, even if, in my opinion, that alleged difficulty is not necessarily proven in practice.
57. Problems linked to the possibility of using different currencies can in fact be limited by several factors which make comparison easier. (62) In addition, it does not appear to me to be essential to require that prices of flights are indicated in a specific currency, in so far as regulation occurs naturally on that market, to a certain extent, by the mere fact that a potential customer may spontaneously turn away from air carriers who indicate their prices in a currency which seems incongruous or impracticable to that consumer.
58. In the light of the foregoing considerations, I propose that the answer to the first question referred for a preliminary ruling is that Article 23(1) of Regulation No 1008/2008, read in conjunction with Article 2(18) of that regulation, must be interpreted as meaning that, when publishing their air fares, air carriers are not required to express those fares in a particular local currency, in the event that they are not expressed in euros.
B. Criteria for identifying the local currency which may be imposed when publishing air fares (second question)
59. The second question referred for a preliminary ruling is asked only in the event that the Court answers the first question referred to the effect that Article 23(1) of Regulation No 1008/2008 requires air carriers to indicate their air fares in a particular local currency. In so far as I propose to answer that question to the contrary, I consider that it will not be necessary to answer the second question. The following brief comments are therefore put forward only in the alternative.
60. By that question, the referring court asks the Court to state in which local currency air fares may be indicated, in accordance with the aforementioned provisions, in a situation such as that at issue in the main proceedings, namely where an air carrier established in one Member State (in the present case Germany) sells, via its website with a top-level domain name specific to that Member State (in this case ‘www.germanwings.de’), (63) to a consumer in that country an air service with a place of departure in another Member State (in the present case the United Kingdom). It asks, moreover, whether it is significant in that regard that all or the overwhelming majority of air carriers indicate the fares in question in the local currency used in the place of departure.
61. The Verbraucherzentrale claims that use should be made of the local currency of the Member State whose law is applicable to the performance of the contract concluded between the air carrier and the consumer targeted by the advertising, in accordance with the conflict-of-law rules in Article 5 of Regulation (EC) No 593/2008. (64) It follows that, in circumstances such as those at issue in the main proceedings, the fare for the flight in question should have been indicated in German currency, namely in euros, and not in British currency, namely in pounds sterling.
62. By contrast, Germanwings claims that air fares must be indicated in euros or in the local currency of the Member State in which the place of departure is situated and that the other connecting factors mentioned in the second question referred for a preliminary ruling have no bearing on the determination of the local currency, within the meaning of Regulation No 1008/2008. The referring court appears to favour that interpretation.
63. As for the Commission, it proposes that Article 23(1) of Regulation No 1008/2008 should be interpreted as not precluding air carriers from expressing their air fares, final prices and the other elements referred to in that provision in the currency of the place of departure. I share that opinion, in the alternative, since, in my opinion, Article 23(1) does not introduce any requirements in that regard. (65)
64. First, I consider that the criterion of the place of departure of the flight in question may be relevant in the determination of the local currency in which air fares should be indicated. As pointed out by the referring court, since the place of departure of the flight is necessarily common to all the air services compared, the local currency used by air carriers to indicate their fares would be the same in respect of all those services, which would make it easier inter alia to compare effectively the prices, as referred to in Regulation No 1008/2008. (66) Moreover, the Commission rightly claims that this is a criterion objectively relating to the transaction, because it is in that place that the performance of the agreed service begins. (67) In addition, it seems reasonable to consider that the customer who will have to make his way to the point of departure of the flight he intends to purchase is deemed to be familiar with using the currency in that country, as is the air carrier providing that service.
65. I would point out that, in my opinion, it is not a decisive factor whether all or the overwhelming majority of air carriers indicate their air fares in the local currency used in the place of departure, as mentioned at the end of the question referred. (68) Nevertheless, the possible existence of that practice, assuming that it is established, could support the idea that air carriers would easily be able to satisfy that criterion.
66. Moreover, the criterion of the place of departure of the flight would be consistent with the fact that the phrase ‘local currency’ used in Article 2(18) of Regulation No 1008/2008 should, so far as concerns air fares, be given a meaning which also applies to the identical phrase used in Article 2(19) concerning air rates, (69) which would preclude the adoption of the criterion suggested by the Verbraucherzentrale. (70)
67. Second, like the referring court and Germanwings, I consider that the criterion of the place of establishment of the air carrier providing the service in question must be rejected, since the currencies that could be used to indicate the price of identical air services would then vary in proportion to the number of countries in which the various air carriers providing that service were established, (71) which would not help customers to compare prices.
68. Third, it would not be any more appropriate to adopt the criterion of the top-level domain name of the internet address used by the air carrier offering the service in question. Like the referring court, I consider that it would be easy for an air carrier to circumvent that criterion by choosing, arbitrarily, a top-level domain name corresponding to the country in whose currency it wishes to indicate its prices. Moreover, Germanwings rightly submits that domain names are not always national and therefore do not necessarily refer to a specific country, as may be the case if the internet address ends in ‘.com’, a situation in which the connecting factor in question would be absent.
69. Fourth, I am also not in favour of either the criterion of the place of stay of the customer or the criterion of the place of the habitual residence of the customer, it being noted that those two places do not necessarily coincide, because it may be the case that a person seeks to purchase air services in a country in which he does not have his habitual residence. Even though it can be assumed that the customer is familiar with the currencies used in those places, those criteria are not in my opinion appropriate, in so far as, at the time when the air carrier formulates its offer of sale, it is not capable of identifying the country in which the public that will actually take an interest is located. As the referring court points out, such an approach would require air carriers to determine the location of all potential customers upstream and indicate, every time, different air fares for the various currency areas concerned, which I consider to be excessive in the light of the dual purpose of the provision in question.
70. Fifth the argument put forward by the Verbraucherzentrale (72) is unconvincing for the following reasons. First, it can be observed that Regulation No 1008/2008 does not establish any link with Regulation No 593/2008, even though the latter was adopted several months previously. Second, according to the Verbraucherzentrale, pursuant to Article 5(2) of Regulation No 593/2008, in the absence of choice by the parties, the law applicable is the law of the country where the passenger has his habitual residence, and the currency of that country should therefore be used when publishing prices, in so far as the place of departure or the place of arrival of the flight is also located in that country. However, such an approach would require the use of software to determine the location of the future passenger or require him to indicate, as a matter of course, his place of habitual residence in order to be informed of the proposed air fares, which could cause practical and possibly legal problems, in particular in terms of the protection of personal data, as Germanwings has argued. Lastly, the interpretation suggested by the Verbraucherzentrale fails to take account of the fact that Article 5(3) contains an additional rule of proximity which can, in actual fact, lead to the designation of another country, (73) not only the country in which the passenger resides.
71. Consequently, in the event that the Court considers that Article 23(1) of Regulation No 1008/2008 requires air carriers to express their air fares in a particular local currency, the answer to the second question should in my opinion be that that provision, read in conjunction with Article 2(18) of that regulation, does not preclude those fares from being indicated in the currency used in the place of departure of the flight in question.
V. Conclusion
72. In the light of the foregoing, I propose that the Court should answer the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows:
Article 23(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community, read in conjunction with Article 2(18) of that regulation, must be interpreted as meaning that, when publishing their air fares, air carriers are not required to express those fares in a particular local currency, in the event that they are not expressed in euros.