Presumed knowledge and the price of flight cancellation

In practical terms, reimbursement of the “ticket price” under EU261 will now, as a rule rather than an exception, include agency commissions or booking fees paid by passengers. The reasoning of the CJEU is that since such commission or booking fee constitutes “an ‘unavoidable’ component of the price of the airline ticket," it falls within the scope of the carrier's statutory reimbursement obligation under EU261.

The legal context under EU261

Where EU261 applies and, following a flight cancellation, a passenger opts for reimbursement rather than re-routing, Article 8(1)(a) requires the carrier to refund “the full cost of the ticket at the price at which it was bought.” Where tickets are purchased through an intermediary – most commonly an online travel agent ("OTA") - the amount paid by the passenger typically exceeds the underlying air fare and taxes, and includes a separate commission or booking fee, retained by the intermediary. The treatment of that additional element has long been a point of contention between passengers and carriers.

Harms (C‑601/17): the starting point

In Harms (CJEU, 12 Sept 2018, Harms and Others v Vueling Airlines SA,C‑601/17), the CJEU held that for the purposes of Article 8(1)(a), the price at which the ticket was bought includes an intermediary’s commission, and must therefore be reimbursed to the passenger, unless that commission was fixed without the air carrier’s knowledge.

Harms remains the bedrock authority on the issue, and is expressly referenced in the European Commission’s revised Interpretative Guidelines on EU261, published on 25 September 2024. However, Harms left unresolved the question of “knowledge" on the part of the carrier that is sufficient to engage or defeat the exception. Eight years on, that uncertainty has been addressed in  C‑45/24.

C‑45/24: clarification and consolidation, not reversal

The CJEU's decision in C-45/24, on referral from the Oberster Gerichtshof (Supreme Court, Austria) for a preliminary ruling, does not depart from Harms: rather it clarifies and strengthens it. Crucially, the Court adopts a markedly more objective approach to the concept of knowledge. The Court held that where an airline authorises, cooperates with or otherwise permits an intermediary to sell tickets in its name and on its behalf, the carrier must, in principle, be regarded as aware that the intermediary charges a commission to passengers. This is so even in the absence of any express contractual provision dealing with commission and even if the carrier does not know the precise amount charged. Knowledge of the existence of commission charging – rather than knowledge of its quantum - is sufficient.

This approach is explicitly grounded in the consumer‑protection objectives of EU261, which are prominent throughout the Court’s reasoning:

"..since that commission cannot be avoided by the passenger when purchasing the ticket… the collection of that agency commission, as an ‘unavoidable’ component of the price of the airline ticket, must be regarded as being authorised by the air carrier and, therefore, as having to be reimbursed under Article 8(1)(a) of Regulation No 261/2004."

Commentary

1. The ruling of the CJEU in C-45/24 confirms that for EU261 purposes, the “ticket price” is determined by reference to the total amount paid by the passenger, not by reference to the airline’s receipt from the intermediary or agent, net of such commission or fee. This is because where a passenger books through an authorised intermediary and pays a commission or fee, the same forms an integral part of the ticket price – an "unavoidable" component - and so is subject to reimbursement following cancellation. Lack of knowledge of the amount of the commission is no defence. Reimbursement turns on what the passenger paid, not on what the carrier received.

2. From the claims perspective, clarification by the CJEU in C-45/24 ought to narrow the scope of dispute in EU261 flight cancellation ticket reimbursement cases, lowering both complexity and litigation cost in these claims.

3. The amount in issue in the facts of the claim behind the reference to the CJEU in CJEU in C‑45/24 was modest - €95.14 - almost trivial, when viewed in isolation. However, the decision’s significance lies instead in scale. EU261 cancellation exposure is driven by mass disruption events - adverse weather events, industrial action, or air traffic control issues - often affecting thousands of passengers simultaneously. The cumulative reimbursement obligation for carriers, inclusive now of intermediary commissions as a matter of course, may therefore be substantial.

4. A significant proportion of airline tickets in the UK and European markets are sold via intermediaries, particularly in the leisure sector. In broad terms, OTA fees can range between £5 and £40 per ticket—but higher amounts are not uncommon for long‑haul or complex itineraries (particularly where bundled services or flexible fare options are involved). The obligation on the part of the carrier to reimburse such fees following flight cancellation and inclusive now of commission, has the potential to exceed the carrier’s net ticket revenue on affected flights.

5. The Advocate General's Opinion in case C‑45/24 (provisional text, 19 June 2025) reflected on the plight of the carrier but dismissed the same, observing that the carrier "does not suffer any disadvantage" because they retain the possibility of seeking recourse against intermediaries. The January 2026 CJEU judgment is strikingly indifferent by its silence as to whether such recourse exists or is commercially viable. The implicit message is clear: unless risk has been contractually allocated, it rests with the carrier.

6. A surge in litigation between carriers and intermediaries over the obligation of the former to reimburse to passengers commission or fees charged by and retained by the latter seems unlikely. More plausibly, carriers will seek to renegotiate agency agreements to introduce commission clawback mechanisms, refund‑related indemnities, or enhanced cooperation obligations. Over time, carriers may also revisit commission structures, fare presentation, or pricing to passengers, to reflect cancellation risk more explicitly.

7. Although post‑Brexit decisions of the CJEU are no longer formally binding on the courts of England & Wales, Scotland, or Northern Ireland, C‑45/24 will constitute highly persuasive authority. In the absence of express departure by a UK appellate court, domestic courts are likely to follow its reasoning when interpreting reimbursement obligations in cases involving intermediary bookings.

Conclusion

From a carrier perspective, C‑45/24 materially alters the EU261 claims landscape. What was previously an exception - reimbursement of agency or intermediary commissions or booking fees - has now become a largely settled obligation, falling squarely on carriers. The judgment confirms a significant shift: reimbursement exposure following flight cancellation is assessed by reference to the total amount paid by the passenger, not merely the amount retained by the airline. This is particularly significant because EU261 reimbursement obligations are not covered by airline insurance programmes; they represent a direct, uninsured cost that must be absorbed by the carrier. In light of this development, renewed scrutiny of agreements by carriers with their agents and other ticket intermediaries is now a matter of prudence rather than preference.