Case law

Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1. Package Travel Directive, Article 4, 4.

1. Price increase clauses in standard contract terms of travel packages are according to § 651a(4) BGB (Bundesgesetzbuch – German Civil Code) generally subject to the review of their content according to § 307(1) BGB. A clause, in which the travel organiser “reserves itself the capacity to change the prices advertised and confirmed at booking in the event of increase in carriage costs or duties for certain services, such as port or airport fees or a change in the applicable exchange rate for the relevant travel service, to the extent that they effect the respective price per person or per seat in the travel service price so long there is a gap of at least four months between conclusion of contract and the agreed date of the travel service … “ therefore already breaches the principle of transparency in § 307 (1), 2nd sentence BGB, given context-specific expression in § 651a (4), 1st sentence BGB, because in its price increase clauses it must generally be made clear, which price is the basis for the requirement of an increased travel price.

II. Facts:
The applicant is a consumer protection association. The respondent travel organiser regularly uses “travel conditions for travel packages”, which contain inter alia the following regulations:
4. Changes of service and price a) … GmbH reserves itself the capacity to change the prices advertised and confirmed at booking in the event of increase in carriage costs or duties for certain services, such as port or airport fees or a change in the applicable exchange rate for the relevant travel service, to the extent that they effect the respective price per person or per seat in the travel service price so long there is a gap of at least four months between conclusion of contract and the agreed date of the travel service …
The applicant seeks an injunction declaring this clause to be void, as it did not contain any duty to reduce the price. The clause incommensurately disadvantages customers, as cost increases which were foreseeable at conclusion of contract and which had even already materialised were incorporated into the contract and did not contain any precise details as to how the new price would be calculated. The Landgericht (district court) dismissed the claim. In the Berufung (appeal on points of law and fact) the Oberlandesgericht (appellate court) forbade the respondent from using these clauses or any clauses with the same content or to rely on any corresponding clauses already used, where the contract is or was not concluded with a business. The respondent’s Revision (appeal on points of law) was unsuccessful at the BGH (Bundesgerichtshof – Federal Supereme Court).>

The BGH confirmed the decision of the previous instance and made clear that the clause at issue was subject to review of content and that due to breach of the principle of transparency in §§ 651a (4), 1st sentence, 307 (1), 2nd sentence, could not be maintained. Therefore, the travel organiser had to cease using these and other clauses with the same content.
The clause at issue in the standard contract terms has a statute-extending character and is thereby subject to the content review according to § 307 (1) BGB. This is not affected by the exclusive reference in § 651a (4), 3rd sentence BGB to § 309 no. 1 BGB. § 651 BGB does not prescribe a certain formulation for a possible price increase clause and therefore does not give the travel organiser any discretion to formulate price increase clauses in its standard contract terms. The price amendment clause at issue extends this framework and is thereby a clause extending dispositive law.
Furthermore the court stated that according to the Package Travel Directive 90/314/EEC, whose transposition occurred through § 651a BGB, contractually fixed prices cannot generally be amended, unless the possibility of a price increase or reduction is expressly provided for in the contract and the contract suffices the requirements laid down in Art. 4 (4) of the Directive, which include that the contract gives the exact details for calculation of the new price. From the clear wording of § 651a (4), 1st sentence BGB, which in this respect accurately transposed the wording of Art. 4 (4) of Directive 90/314/EEC, it is provided that the exact details for calculation of the price increase required by law must be included in the contract. Information expressed otherwise, e.g. sent following conclusion of contract, is not sufficient. It results from the consumer protecting character of the norm that the upper limit of price increases of 5% named in § 651a (5) BGB can in no way always be reasonable for the traveller.
In the clause at issue there is no reference point in time for the determination of the cost increases to be passed on to the customer. In particular it remains unclear whether all additional burdens on the respondent since determination of the original price or publishing of the brochure are to be incorporated into the calculation or only those following conclusion of the contract with the customer. Furthermore the clause contains no sufficient details as to the mechanisms to be applied for the distribution of individual cost positions, as travel organisers do not book individual services for each travel package, but rather book contingents, so that cost increases must be converted to the individual packages. The giving of the benchmark “per person or seat” without cost factors, conversion keys and calculation methods does not enable to customer to examine the amount of increase required from him.
The Package Travel Directive however requires the exact details of the calculation methods for price changes in the contract. Travel operators are bound to observe the conditions in Art. 4 (4) of the Directive and thereby also § 651a (4), 1st sentence BGB. Art. 4 (4) of the Directive accordingly contains a principle of transparency already recognised in the case law to § 9 AGBG (Allgemeine Geschäftsbedingungsgesetz – Standard Contract Terms Act) (now § 307 BGB), by which an essential need of protection of the contractual partner of a travel operator is recognised in law, to be able to also carry out his own calculations to examine the justification for the price increase.
The clause at issue in the view of the BGH also does not even therefore suffice the principle of transparency, because by its formulation “and confirmed at booking” the respondent reserves itself the power to increase the prices confirmed at booking and not only enables itself to increase prices due to cost increases following conclusion of contract, but also possibly because of costs whose future increase was already known at the time of conclusion of contract. It is ambiguous and is therefore subject to the customer friendly interpretation (contra preferentum rule).
By reason of the clarity of the facts the BGH therefore expressly declined the need for a preliminary reference to the ECJ on the interpretation of the Package Travel Directive.

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