How to solve the problem with "Kiwi tickets"? Is it possible to withdraw from the contract with Kiwi?
Kiwi.com s.r.o. has been providing its services in the ticketing market for many years. Due to frequent questions, we write here about how to proceed if a problem occurs.
The important thing is that Kiwi does not sell you flight tickets. Based on the contract it concludes with you over the Internet, Kiwi undertakes to provide you with a service. This service consists of Kiwi arranging for you to enter into a contract of carriage with the selected airline, and this contract is specified in the order. By submitting an order, you undertake to pay Kiwi the price for providing this service.
On the basis of this contract for the provision of services, Kiwi will subsequently try to order all the services requested by you (i.e. flight tickets and possibly additional services) with the carriers on your behalf.
Withdrawal from the contract within 14 days of its conclusion
Perhaps it has happened to you or it will happen that Kiwi informs you that the "booking failed" and makes you an alternative offer by email - choose: either you will be refunded the money paid, or they will credit you with "credits" in the relevant amount, or Kiwi will provide you with alternative transport (according to a similar itinerary) after paying the difference in price.
Also, you may have encountered that even after selecting "refund", the money was not returned to you. Instead, you were e.g. refunded credits you didn't want.
Or, after ordering your tickets through Kiwi, you decided that you don't want to or can't fly.
The way these situations can be resolved is withdrawing from the contract within 14 days. Kiwi, however, resists such a procedure in its new terms and conditions. So what are your rights in reality?
Is it possible to withdraw from the contract with Kiwi?
The current wording of Kiwi's terms and conditions (as of 28/05/2022) states that your right to withdraw from the contract for the provision of services within 14 days of its conclusion is excluded. But is this provision of the terms and conditions valid? You really can't withdraw from the contract? In the following paragraphs, we will discuss the legal considerations that lead us to conclude that as a consumer you can withdraw from the contract within 14 days, regardless of what Kiwi says in the commercial conditions.
When Kiwi says that the right to withdraw does not work for you, it refers to Directive No. 2011/83/EU on consumer rights, specifically its Article 3 paragraph 3 letter to). In short, the directive enshrines consumer rights, among them the generally known right of the consumer to withdraw from a distance contract within 14 days. However, the said article limits the scope of the directive by saying that the directive does not apply to "contracts relating to services in the field of passenger transport". It can be inferred that the exception formulated in this way also applies to the contract for the mediation of the conclusion of the transport contract (i.e. the contract between you and Kiwi).
The directive was to be incorporated into Czech law in the mode of full harmonization with effect from 1 January 2022 at the latest (that is, any higher level of consumer protection enshrined in Czech national law was to be "equalised" to the level according to the directive). The Czech Republic did not transpose the directive within the relevant deadline.
In the Czech civil code, which implements the directive, the exception applies only to "a contract for the carriage of a person" (Section 1840 letter h)). That is, not for contracts for the provision of services, consisting in mediating the conclusion of a contract for the transport of persons. Within amendment of the Civil Code from the beginning of 2023, the wording of this provision did not change. The amendment in the Czech Civil Code is therefore more advantageous for consumers compared to the directive, as they can exercise their right to withdraw within 14 days for a larger number of contracts. In contrast to the directive, it can also do so for contracts in the field of passenger transport that relate to transport, and it is not a transport contract itself. According to Czech law, you can withdraw from the contract with Kiwi within 14 days.
What about the binding nature of EU directives? Directives are legal acts binding EU states to make adjustments to national law. They are generally not binding on individuals (that is, you and Kiwi). There are exceptions to this if certain conditions are met (the deadline for the transposition of the directive has passed in vain, the rule in question is sufficiently precise and unconditional, direct application does not impose obligations on the individual). If these conditions are met, the directive can be directly applicable - in the relationship between an individual and the state. An individual can invoke the rules set out in the directive against the state. Conversely, a state cannot invoke national rules against an individual that are contrary to what the Directive provides.
However, can Kiwi invoke the rules of the directive against you? And what's more, the rules according to which you do not have the right to withdraw from the contract for the provision of services? We believe that not. The direct horizontal effect of the directive (i.e. its bindingness between subjects of private law) is limited mainly to cases of discrimination in the employee-employer relationship (from the jurisprudence CJEU the Mangold cases can be mentioned , Coleman and Kükükdeveci). For an entrepreneur to invoke the direct effect of a directive that grants the consumer fewer rights than national regulation, to the detriment of the consumer, is in our opinion contrary to the principles on which consumer protection is based. In particular, it would be contrary to the principle of protection of the weaker contracting party – the consumer who is burdened by information asymmetry or unequal bargaining power.
Conclusion: In our opinion that is, according to Czech law it is possible from the contract for the provision of services concluded between You and Kiwi, withdraw within 14 days of its conclusion.
How to withdraw from the contract?
Withdrawal from the contract for the provision of services must be sent to Kiwi no later than 14 days after the conclusion of the contract. The period begins immediately after the online ticket order is completed. This period is preserved if you send within its duration a notice to Kiwi stating that you withdraw from the contract.
What address to send to? Notice of withdrawal can be sent
- to the address of Kiwi headquarters (Lazaretní 925/9, Zábrdovice, 615 00 Brno, Czech Republic),
- data box (ID: xwgci53),
- possibly by e-mail, if they communicated it to you.
What are the consequences of withdrawing from the contract?
Withdrawal from the contract results in the termination of the contractual relationship from the beginning, and the associated obligation of the parties to return the performance provided to each other. Kiwi should then refund you the amount you paid for the provision of their services.
However, it is possible that Kiwi has already started fulfillment. If you withdrew from the contract with the fact that Kiwi has already provided some of the ordered services, a proportional part of the paid funds does not have to be returned to you. Therefore, if Kiwi has already managed to purchase some specified tickets from the airline, the funds spent on these tickets are not required to be returned to you.
On the contrary, if Kiwi did not secure the tickets at all, you have the right to a full refund of the price paid for the services.
What should withdrawal from the contract look like?
We provide you with a template for withdrawing from the contract concluded with Kiwi. It is applicable in relation to the wording of Kiwi.com's terms and conditions on the date of publication of the article, i.e. 01/08/2022, and the legislation effective on that date.
We have experience with solving unpleasant situations with airline tickets and compensation for a spoiled holiday. Do not hesitate to contact us, we will discuss the problem with you and find a solution.
