The CJEU Takes Flight: Databases and Air Fares

January 15, 2015

The Court of Justice of the European Union published its judgments in two cases involving airlines on 15 January. In the first, involving Ryanair, it was concerned with protection against alleged misuse of the database of fares published by the airline and in the second, involving Air Berlin, it was concerned with the accuracy of air fares published on a web site.

The Database Case

In Case C-30/14 Ryanair Ltd v PR Aviation BV the Court of Justice had to consider a reference from a court in the Netherlands. The Hoge Raad der Nederlanden referred just one question:

‘Does the operation of [Directive 96/9 – the Database Directive] also extend to online databases which are not protected by copyright on the basis of Chapter II of [that directive], and also not by a sui generis right on the basis of Chapter III, in the sense that the freedom to use such databases through the (whether or not analogous) application of Article[s] 6(1) and 8 in conjunction with Article 15 [of Directive 96/9], may not be limited contractually?’

The background to the case is that PR Aviation operates a website which allows consumers to search flight data of low-cost air companies, compare prices and, on payment of commission, book a flight. PR Aviation responds to any consumer query relating to a Ryanair flight by automatically accessing data on the Ryanair web site which is of course accessible to consumers. But access to that web site was conditional and the terms and conditions included the following:

The use of automated systems or software to extract data from this website or for commercial purposes, (‘screen scraping’) is prohibited unless the third party has directly concluded a written licence agreement with Ryanair in which permits it access to Ryanair’s price, flight and timetable information for the sole purpose of price comparison.

The CJEU felt that the restriction on limiting the use of a database by contract where the Database Directive applied fell away where a database was not protected by either copyright of the sui generis database right. The mere fact that a set of data could properly be described as a database did not prevent the adoption of contractual clauses concerning the conditions of use of such a database. The CJEU ruled as follows (at [40]-[45]):

[Directive 96/9 – the Database Directive] sets out to achieve a balance between the rights of the person who created a database and the rights of lawful users of such a database, that is third parties authorised by that person to use the database. In that context, Articles 6(1), 8 and 15 of Directive 96/9, which confer rights on lawful users and, in so doing, limit those of the person who created the database, are applicable only in respect of a database over which its author has rights to title, either copyright in Article 5 of that directive or the sui generis right in Article 7 thereof. However, it is irrelevant with regard to a database whose author does not enjoy any of the abovementioned rights under Directive 96/9.

Contrary to PR Aviation’s submissions, that interpretation of Directive 96/9 is not capable of reducing the interest in claiming legal protection instituted by that directive in that the author of a database protected by that directive, unlike the author of a database which is not so protected, does not have the contractual freedom to limit the rights of users of its database.

Such arguments ignore the legal and economic interest that the system of automatic protection represents for a person who has invested in the creation of a database, harmonised in the Member States, which attaches to the exclusive right under copyright to reserve the right to perform the various acts referred to in Article 5 of Directive 96/9 and the right to prohibit under the sui generis right the acts referred to in Articles 7(1) and (5) and 8(2) thereof. As the Commission stated at the hearing, the benefit of that protection does not require any administrative formalities to be fulfilled or any prior contractual arrangement.

That being the case, if the author of a database protected by Directive 96/9 decides to authorise the use of its database or a copy thereof, he has the option, as confirmed by recital 34 in the preamble to that directive, to regulate that use by an agreement concluded with a lawful user which sets out, in compliance with the provisions of that directive, the ‘purposes and the way’ of using that database or a copy thereof.

However, as regards a database to which Directive 96/9 is not applicable, its author is not eligible for the system of legal protection instituted by that directive, so that he may claim protection for his database only on the basis of the applicable national law.

Having regard to all of the foregoing considerations, the answer to the question referred is that Directive 96/9 must be interpreted as meaning that it is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.

The full judgment can be accessed here.

The Air Fares Case

In Case C-573/13 Air Berlin v Bundesverband der Verbraucherzentralen und Verbraucherverbände the CJEU was faced with a reference from the Bundesgerichtshof that concerned Regulation (EC) No 1008/2008 on common rules for the operation of air services in the Community. The German Federal Union of Consumer Organisations and Associations had challenged the way in which air fares were presented in Air Berlin’s computerised booking system, as configured in November 2008.

The CJEU held that, in the context of a computerised booking system such as the system at issue, the final price to be paid must be indicated whenever the prices of air services are shown, including when they are shown for the first time. This applies not only to the air service specifically selected by the customer, but also to each air service in respect of which the fare is shown.

The full judgment can be accessed here.