The Case
The subject matter before the Higher Regional Court (OLG) Hamm was a basic fare under which certain customary services were available only for a surcharge.
The fare allowed passengers only one item of hand luggage with maximum dimensions of 40 × 30 × 20 cm. It had to fit under the seat in front. In addition, goods purchased at the airport could be carried free of charge, provided they too fitted under the seat.
For a further item of hand luggage measuring up to 55 × 40 × 20 cm and weighing no more than ten kilograms, customers on this fare were in principle required to pay a surcharge of around EUR 71. Other fares, as well as certain customer groups, by contrast included such a further item without any additional surcharge.
The Federation of German Consumer Organisations (vzbv) took action against several aspects of this model:
- against the hand luggage clause itself,
- against its implementation in the booking process and
- against the associated pricing.
The OLG Hamm upheld the claim in full (OLG Hamm, judgment of 7 July 2026 – 13 UKl 4/25).
Note on finality: The judgment is not final. By judgment of 7 July 2026, the panel upheld its default judgment of 20 January 2026 after the airline had lodged an objection. Precisely because the OLG expressly left open the core EU-law question on the permissible minimum dimensions, clarification by the Federal Court of Justice (BGH) cannot be ruled out. Nor is the case an isolated one: it is part of coordinated action by the vzbv against the hand luggage practices of several airlines.
The Core Reasoning: Unreasonable Disadvantage
As regards the hand luggage clause, the court started directly with the review of standard terms and conditions. The rule constituted standard terms and conditions within the meaning of § 305 BGB. Its validity therefore had to be assessed in particular against § 307 BGB. The claimant consumer organisation was able to assert the claim for injunctive relief under § 1 UKlaG.
The decisive point here was not the absolute size of the hand luggage permitted free of charge, but the restriction to exactly one item of luggage.
In the view of the panel, the restriction to a single item of hand luggage unreasonably disadvantaged passengers. A passenger who carried two smaller bags whose combined volume did not exceed the permitted dimensions had to pay a surcharge for them, whereas a single item of luggage of the same volume remained free of charge.
This finding was reinforced by the airline’s own exception: under its conditions, passengers could take goods purchased at the airport into the cabin in addition to the free item of hand luggage, provided everything could be stowed under the seat in front.
Accordingly, the safety argument was not convincing either. If several shopping bags are permitted in addition to hand luggage, it is hard to justify why, for example, a small handbag and a camera bag with a smaller total volume should, for safety reasons, be permitted only on payment of a surcharge.
The court could identify no comprehensible objective reason for this unequal treatment.
The OLG Hamm expressly left open whether the dimensions of 40 × 30 × 20 cm prescribed by the airline still meet the “reasonable requirements” which the Court of Justice of the EU (CJEU) takes as its starting point for hand luggage that is to be carried free of charge.
Anyone who wishes to justify differential treatment by an objective reason must maintain that reason consistently within their own set of rules. An exception that itself undermines the asserted reason can bring down the justification for the clause.
The Attack under Unfair Competition Law Was Left Open
Whether the specific booking and pricing arrangements also infringed requirements of unfair competition law or EU law, the OLG Hamm left open. It considered the EU-law questions raised by the airline to be immaterial to the decision and declined both a stay of the proceedings and a reference of its own to the CJEU. The panel nevertheless drew on the CJEU case law on hand luggage (CJEU, judgment of 18 September 2014 – C-487/12) – not, however, to suggest an infringement of EU law, but to define the concept of hand luggage as the totality of the items of luggage carried and to derive from this the unreasonableness of the one-item restriction under § 307 BGB.
The vzbv based its claims not only on the review of standard terms under § 1 UKlaG in conjunction with § 307 BGB, but also on consumer-protection and unfair-competition grounds for claims under § 2 UKlaG in conjunction with §§ 3, 5 UWG and Art. 23 Regulation (EC) No 1008/2008. The competition-law allegation was thus directed not only at the content of the clause itself but at how it was communicated to customers: in the view of the vzbv, the information given in the booking process created the impression that only a single item of hand luggage could be carried free of charge and that a further or larger item of cabin luggage inevitably incurred an additional charge. It also complained that this additional charge was not already shown in the fare alongside the final price.
However, the OLG did not have to decide these lines of attack independently under the Act against Unfair Competition (UWG) or the EU price provisions. Having already held the hand luggage clause invalid under § 307 para. 1 sentence 1 BGB, it also treated its implementation in the booking process and in the pricing as a further use of that invalid clause.
The panel deliberately did not enter into the EU-law dimension: it considered the EU-law questions raised by the airline to be immaterial to the decision and declined both a stay of the proceedings and a reference of its own to the CJEU. It nevertheless drew on the CJEU case law on hand luggage (C-487/12) – not, however, to suggest an infringement of EU law, but to define the concept of hand luggage as the totality of the items of luggage carried and to derive from this the unreasonableness of the one-item restriction under § 307 BGB.
The Invalid Clause Also Affected the Booking Process and Pricing
Particularly noteworthy is that the OLG understood the “use” of an invalid standard terms clause very broadly. The airline “used” the invalid one-item rule not merely by including it in its conditions of carriage. It also put it into practice:
- in the booking process, because it was displayed there that one item of hand luggage is free of charge and a further one costs extra;
- in its pricing, because a surcharge was demanded for the second item of hand luggage.
The same applied to the pricing. The OLG likewise treated it as use of the invalid hand luggage clause. After all, this surcharge presupposed that the rule “only one item of hand luggage is free of charge” was valid in the first place. If this basic rule is invalid, the pricing that builds on it cannot be based on it either.
Where Unfair Competition Law Is Nevertheless the Decisive Lever
That the OLG was able to decide the case under § 307 BGB was specific to this case. The UWG therefore by no means becomes irrelevant. It comes to the fore above all where it is not the contractual clause itself that is challenged but the way in which a fare is advertised or presented to consumers.
This may be the case, for example, where a fare is advertised with a particular price or scope of services, but necessary additional costs are not sufficiently clearly apparent to the consumer. In that case, the provisions on misleading practices in §§ 5, 5a UWG come into consideration in particular. For airfares, the EU-law transparency requirements of Art. 23 Regulation (EC) No 1008/2008 apply in addition.
The decision therefore does not mean that questions of fare and price presentation are generally to be resolved through the review of standard terms and conditions. Where the issue is advertising with prices, services or additional costs, unfair competition law may remain the relevant standard of review.
The Decisive Question of the Size of Free Hand Luggage Remains Open
The OLG, by contrast, did not decide a question of particular practical importance: How large must the free hand luggage included in the airfare be, at a minimum?
According to the CJEU’s case law in the “Vueling” case, luggage that is not checked in is in principle part of the carriage, provided its weight and dimensions meet reasonable requirements (CJEU, judgment of 18 September 2014 – C-487/12). However, the OLG expressly left open whether a free item of hand luggage measuring 40 × 30 × 20 cm still meets these requirements. A decision on this was not necessary because the clause already failed on account of the restriction to a single item of luggage.
This leaves unresolved how far airlines may reduce the hand luggage included in the base price in terms of weight and dimensions before an additional charge becomes problematic under EU law. For Light and Basic fares in particular, a central point of dispute thus remains open.
What the Decision Means in Practice
For the drafting of standard terms and conditions, the rule is: differentiation between customers or services requires a sound objective reason – and that reason must be applied consistently within one’s own set of terms. Anyone who invokes safety interests must not at the same time undermine them through their own exceptions.
For the enforcement of claims, the rule is: with fare and pricing structures, one should not be too quick to ask “standard terms law or UWG?” One and the same arrangement can affect the validity of a clause, its use in the booking process and information obligations under unfair competition law or EU law all at once. The right sequence of questions is: What exactly is being attacked? Which provision covers that attack? And who is entitled to enforce the resulting claim?
The significance extends far beyond aviation. The two central moves of the decision – the broadened concept of “use” and the derivation of a defect in price labelling from § 307 BGB – can be transferred to any business model with tiered fares and additional services available for a surcharge. Particularly affected are online retailers and platform operators who offer basic and premium variants or unlock individual services for a surcharge. Where such differentiation is controlled by an invalid standard terms clause, its invalidity can carry over into the price presentation and the ordering process. For fare models in e-commerce, this means: differentiation without a sound objective reason is not only a standard terms issue but at the same time a matter of price transparency and competition law.
Have you received a cease-and-desist letter over the way you have designed your pricing or your standard terms and conditions? We will review whether it is justified, whether the sender has standing to bring the claim, and the scope of the cease-and-desist declaration demanded.
