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.