The BGH concurred with the rulings in the Court of First Instance and Court of Appeal. The lower courts had argued that the traveller’s claims on the grounds of faults/defects were not covered under § 651k BGB or art 7 of Directive 90/314/EEC. Under § 651k para 1 sentence 1 no. 1 BGB, the tour operator only had to ensure that the traveller would be reimbursed for the trip price should any travel services not be performed either because the operator was unable to pay or because bankruptcy proceedings for the tour operator’s assets had been initiated. The case in question was not covered by the wording of the regulation, since it wasn’t the case that travel services had not been performed. Rather, they had been fully performed right up to the traveller’s return. Moreover, the tour operator had not been unable to pay before the end of the holiday.
It is true that the protection afforded under art 7 of Directive 90/314/EEC is designed to safeguard consumers against risks resulting from a tour operator’s bankruptcy. However, it only encompasses the risks listed in article 7, including claims for reimbursement of monies paid for travel services that were not performed and claims for return transport to take the consumer back to where he began the trip.
According to the BGH, the history behind the Directive also suggests that art 7 of Directive 90/314/EEC should not be interpreted too broadly. Unlike the Commission’s first draft of the Package Travel Directive, article 7 explicitly limits the tour operator’s insurance obligations. § 651k BGB should not be interpreted any differently since this was designed to transpose art 7 of Directive 90/314/EEC directly.
Furthermore, it is not possible to conclude from the ECJ judgements of 14th May 1998 (Neue Juristische Wochenschrift 1998, 2201 – German Consumers’ Association) and 15th June 1999 (Neue Juristische Wochenschrift 1999, 3181 - Rechberger) that the Directive should be interpreted in any other way. In these judgements, the ECJ gave a more precise explanation of both conditions laid down in article 7. It ruled that if any claims on the grounds of faults/defects occurring on a trip that had been fully performed by the tour operator could not be paid because the operator had been declared bankrupt after the trip, these were not covered by a duty to provide guarantees for the consumer.
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