The Senate stated that the content of the contractual agreement reached, interpreted from the view of the traveller according to §§ 133, 157 BGB, was decisive for the issue of whether a travel contract or a travel brokerage contract was formed. A travel agent is a person who brokers travel services of a travel organiser for the traveller. A travel organiser by contrast is a person who markets a package of travel services as his own, i.e. one who from the outset elects a number of travel services, co-ordinates them, makes them into a whole and then offers them as a fixed programme at a fixed price. The distinction does not depend on the description chosen by the parties, rather the decisive factor is the conduct of the service provider as well as the design of the travel brochure, whereby the traveller primarily links his expectations with the brochure of whom he is entering contractual relations with and to whom he is obliged to make the respective payments.
In the opinion of the Senate, the claimant here merely appeared as a travel broker. It merely compiled a single holiday according to the instructions and wishes of the respondent from someone else’s catalogue. Furthermore, from the fact that the sender of the travel confirmation was “K.-Reisen Special-Tours” and that “Special-Tours/ E.” was exclusively named as “organiser”, it was clear that the claimant was merely a travel agent.
Comment
The view of the OLG (higher regional court) Dresden may breach the Package Travel Directive, as the ECJ expressly emphasised in Case C-400/00 (Club Tour) that a travel package can exist if the travel agency compiles a holiday according to the instructions and wishes of the consumer prior to conclusion of contract and receives a total price for all services.