'Kiwi Flight Tickets', or How to Enforce Your Rights Against Kiwi

Kiwi.com s.r.o. has been providing its services on the airline ticket market for a number of years. Because we get asked about this so often, here we explain what to do if a problem arises.

The important thing is that Kiwi does not sell you the tickets. Under a contract it concludes with you online, Kiwi undertakes to provide you with a service. That service consists of Kiwi arranging, on your behalf, the conclusion of a contract of carriage with your chosen airline, the contract being specified in your order. In return, by sending the order, you undertake to pay Kiwi the price for providing that service.

On the basis of this service contract, Kiwi then tries to order, in your name, all the services you have requested from the carriers (that is the tickets and any additional services).

Withdrawing from the contract within 14 days of its conclusion

It may have happened to you, or it may yet happen, that Kiwi tells you the "booking failed" and emails you an alternative offer to choose from: either you get your money back, or they credit you with "credits" in the relevant amount, or Kiwi arranges alternative transport for you (along a similar itinerary) once you pay the difference in price.

You may also have found that, even after choosing "refund", you weren't given your money back. Instead you were given, say, credits you didn't want.

Or perhaps, after ordering tickets through Kiwi, you decided that you don't want to fly, or can't.

One way to deal with these situations is to withdraw from the contract within 14 days. Kiwi, however, resists this in its new terms and conditions. So what are your rights, really?

Can you withdraw from a contract with Kiwi?

The current version of Kiwi's terms and conditions (in force since 28 May 2022) now states that your right to withdraw from the service contract within 14 days of its conclusion is excluded. But is this clause in the terms valid? Can you really not withdraw? In the paragraphs that follow, we set out the legal reasoning that leads us to conclude that, as a consumer, you can withdraw from the contract within 14 days, regardless of what Kiwi says in its terms and conditions.

When Kiwi says you have no right of withdrawal, it points to Directive 2011/83/EU on consumer rights, specifically Article 3(3)(k). In short, the directive sets out consumers' rights, including the well-known right of a consumer to withdraw from a distance contract within 14 days. That article, however, limits the directive's scope by providing that it does not apply to "contracts for passenger transport services". It can be argued that an exception worded this way also covers a contract to arrange the conclusion of a contract of carriage (that is, the contract between you and Kiwi).

The directive was supposed to be incorporated into Czech law under a regime of full harmonisation, taking effect by 1 January 2022 at the latest (so any higher level of consumer protection that Czech domestic law provided was to be "brought into line" with the level set by the directive). The Czech Republic did not transpose the directive within that deadline.

In the Czech Civil Code, which implements the directive, the exception, unlike in the directive, applies only to a "contract for the carriage of a person" (Section 1840(h)). It does not, therefore, apply to service contracts that consist of arranging the conclusion of a contract for the carriage of persons. The wording of this provision was not changed in the amendment to the Civil Code in early 2023. The Czech Civil Code's rules are thus more favourable to the consumer than the directive, because you can exercise your right of withdrawal within 14 days for a wider range of contracts. Unlike under the directive, you can do so even with contracts in the field of passenger transport that relate to carriage but are not the contract of carriage itself. Under Czech law, then, you can withdraw from your contract with Kiwi within 14 days.

How binding are EU directives, though? Directives are legal acts that oblige EU states to make changes to their domestic law. As a rule, they are not binding on individuals (that is, on you and on Kiwi). There are exceptions to this where certain conditions are met (the deadline for transposing the directive has passed without result, the rule in question is sufficiently precise and unconditional, and direct application does not impose obligations on an individual). Where these conditions are met, a directive can be directly applicable, in the relationship between an individual and the state. An individual can invoke the rules laid down in a directive against the state. Conversely, the state cannot invoke against an individual domestic rules that conflict with what the directive provides.

But can Kiwi invoke a rule from the directive against you? And, what is more, a rule under which you have no right to withdraw from the service contract? We think not. The direct horizontal effect of a directive (that is, its binding force between parties governed by private law) is limited mainly to cases of discrimination in the employee-employer relationship (from the case law of the CJEU we can mention the Mangold, Coleman, and Kücükdeveci cases). For a business to invoke the direct effect of a directive that gives the consumer fewer rights than domestic law does, to the consumer's detriment, is in our view contrary to the principles on which consumer protection rests. In particular, it would conflict with the principle of protecting the weaker contracting party, the consumer, who is burdened by information asymmetry and unequal bargaining power.

Conclusion: in our view, then, under Czech law it is possible to withdraw from the service contract concluded between you and Kiwi within 14 days of its conclusion.

How to withdraw from the contract

Notice of withdrawal from the service contract has to be sent to Kiwi no later than 14 days after the contract is concluded. The period starts to run as soon as you complete the online ticket order. The deadline is met if, during that period, you send Kiwi notice that you are withdrawing from the contract.

Where should you send it? Notice of withdrawal can be sent:

to Kiwi's registered office (Lazaretní 925/9, Zábrdovice, 615 00 Brno, Czech Republic),
via data box (ID: xwgci53),
or by email, if they have given you one.

What are the consequences of withdrawing from the contract?

Withdrawal causes the contractual relationship to come to an end from the outset, with the parties having to give each other back whatever they have provided. Kiwi should therefore return the amount you paid for the provision of its services.

It is possible, however, that Kiwi has already begun performing. If you withdrew from the contract when Kiwi had already provided some of the ordered services, it does not have to return the proportionate part of the money you paid. So if Kiwi has already managed to buy some of the specified tickets from the airline, it is not obliged to return the money spent on those tickets.

Conversely, if Kiwi did not secure any tickets at all, you are entitled to a full refund of the price you paid for the services.

What should the withdrawal look like?

We are making a template available for withdrawing from a contract concluded with Kiwi. It can be used in relation to the version of Kiwi.com's terms and conditions as at the date this article was published, that is 1 August 2022, and the law in force on that date.