Flight tickets via Kiwi and What are your rights?
Kiwi.com s.r.o. has been providing its services on the airline ticket market for many years. It claims to offer cheap travel options for all, making the world accessible to all. Everyone can judge for themselves whether this is true. In this article, we will advise you on what to do if a problem arises and customer support cannot help you.
This article is written for readers in the Czech Republic, who buy flight tickets in the Czech Republic.
The important thing is that Kiwi does not sell you tickets. Kiwi undertakes to provide you with a service based on the contract it enters into with you over the internet. This service consists of Kiwi arranging a contract of carriage for you with the airline of your choice, while this contract is specified in the order. In return, you agree to pay Kiwi the price for the provision of this service by submitting the order.
On the basis of this service contract, Kiwi will then attempt to book all the services you require (i.e. tickets and any additional services) with the carriers on your behalf.
Withdrawal from the contract within 14 days of its conclusion
You may have been notified by Kiwi that the "booking has failed" and an alternative offer will be made to you by email - you can choose: either your money will be refunded, or you will be credited with "credits" of the appropriate amount, or Kiwi will arrange alternative transport (on a similar itinerary) after you pay the price difference.
You may also have encountered that even after selecting "refund", your money was not refunded. Instead, you were e.g. refunded credits that you didn't want.
Or, after ordering your tickets through Kiwi, you decided you didn't want to or couldn't fly.
The way to deal with these situations is to cancel the contract within 14 days. However, excludes this consumers' right in its new terms and conditions. The question is: what are actually your rights?
Is it possible to cancel a contract with Kiwi?
The current version of Kiwi's terms and conditions (as of 28 May 2022) newly states that your right to withdraw from a service contract within 14 days of its conclusion is excluded. But is this provision of the terms and conditions valid? Is it true that you cannot withdraw from the contract? In the following paragraphs, we discuss the legal considerations that lead us to conclude that as a consumer you can cancel a contract within 14 days, regardless of what the Kiwi's terms and conditions state.
When Kiwi states that you do not have the right to withdraw, it is referring to the Consumer Rights Directive 2011/83/EU, specifically Article 3(3)(k). In a nutshell, the Directive enshrines consumer rights, including the well-known consumer right to withdraw from a distance contract within 14 days. However, that Article limits the scope of the Directive by stating that it does not apply to "contracts relating to passenger transport services". By interpretation, this exemption also applies to the service contract to arrange conclusion of contract of carriage (i. e. the contract between you and Kiwi).
The Directive should have been incorporated into Czech law under the full harmonization regime with effect by 1 January 2022 at the latest. Full harmonization means that any higher or lower level of consumer protection that Czech national law provided for should have been levelled with the Directive). The Czech Republic did not transpose the Directive within the relevant time limit.
The Czech Civil Code, which implements the Directive, exempts only "contracts of carriage" of a person (Article 1840(1)(h)). It does not apply to contracts for the provision of services consisting in the arranging the conclusion of contracts of carriage. Under the proposed amendment to the Civil Code, which we wrote about HERE (link to article), the wording of this provision will be changed in this respect. The regulation in the Czech Civil Code is therefore more advantageous for consumers, as he can exercise his right of withdrawal within 14 days in a larger number of contracts. Unlike in the Directive, he can also do so for contracts relating to passenger transport and which are not contracts of carriage specifically. Under Czech law, you can withdraw from a Kiwi contract within 14 days.
What about the binding nature of EU directives? Directives are legal acts that oblige EU member states to implement changes in national law. They are generally not binding on individuals (i.e. you and Kiwi). There are exceptions to this, provided certain conditions are met (the deadline for transposition of the directive has expired, the rule in question is sufficiently precise and unconditional, direct application does not impose obligations on an individual). If these conditions are met, the Directive may be directly applicable in the relationship between the individual and the State. The individual can invoke the rules laid down in the Directive against the State. Conversely, the State cannot invoke national rules against an individual that are contrary to what the Directive provides.
But can a Kiwi invoke the rules of the Directive against you? While it is a rule under which you (consumer) are not entitled to withdraw from a contract for the provision of services? We do not think so. The direct horizontal effect of the Directive (i.e. its binding effect between private individuals) is limited in particular to cases of discrimination in the employee-employer relationship (the CJEU case law examples: Mangold, Coleman and Kükükdeveci). For an professional to invoke the direct effect of a directive which gives consumers lower level of protection than national law, to the detriment of the consumer, is, in our view, contrary to the principles underlying consumer protection. In particular, it would be contrary to the principle of weaker party protection - which is the consumer, who is burdened by information asymmetry or inequal bargaining power.
Conclusion: It is possible under Czech law to withdraw from a contract for the provision of services between you and Kiwi within 14 days of its conclusion.
How to withdraw from the contract?
The withdrawal from the service contract must be sent to Kiwi within 14 days of the conclusion of the distance contract. The period starts immediately after the completion of the online ticket order. This period is maintained if you send the Notice of Withdrawal to Kiwi during this period.
Where should you send it? You can send a cancellation notice to
- In Czech republic, to Kiwi's registered office (Lazaretní 925/9, Zábrdovice, 615 00 Brno, Czech Republic),
- by data box (ID: xwgci53),
- or by e-mail, if Kiwi has given you one.
What are the consequences of withdrawing from the contract?
Withdrawal from the contract results in its termination from the beginning, and the obligation of the parties to return the performance provided to each other. Kiwi should therefore refund you the amount that you have paid for the provision of their services.
However, it is possible that Kiwi may have already begun with the performance. If you have withdrawn from the contract when Kiwi has already provided some of the services you ordered, they do not have to refund a proportion of the price you have paid. Therefore, if Kiwi has already purchased some of the specified airline tickets from the airline, Kiwi is not obliged to refund the money spent on these tickets.
If, on the other hand, Kiwi has not secured the tickets at all, you are entitled to a full refund of the price paid for the services.
What should a cancellation look like?
We provide you with a template for Withdrawal from Contract with Kiwi and Call for Refund (below). It is applicable in relation to the wording of Kiwi.com's terms and conditions at the date of this article, 9 August 2022, and the legislation in force on that date.
Also, we provide you with the template of Pre-Trial Notice and Pre-Filled Form to initiate proceedings at Czech Trade Inspection.
Would you like to learn more tips on how to deal with unpleasant ticket situations? Let us know what problems you have encountered.
Download: Withdrawal from Contract and Call for Refund
Download: Pre-Trial Notice
Pre-Filled Form - Czech Trade Inspection