Case law

  • Case Details
    • National ID: IV ZR 275/03
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 16/02/2005
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Package Travel Directive, Article 7
  • Headnote
    1. Where a tour operator goes bankrupt, neither § 651k BGB nor art 7 of Directive 90/314/EEC cover liability for faults/defects on a trip that has already taken place.
  • Facts
    The plaintiff brought a claim against the defendant under bankruptcy insurance for tour operators. He had booked a 14-day package holiday for four people in Turkey with a tour operator. He had paid a total price of 5398 DM prior to departure and received a guarantee certificate from the defendant as required under § 651k BGB. He went on the trip at the end of July / beginning of August 2001. Following the holiday, the plaintiff lodged compensation and a price reduction claims and, on 29th January 2002, sought a judgement in absentia against the tour operator for a total of 10690 DM. On 10th January 2002, a temporary administrator had been appointed for the tour operator’s company. For that reason, the plaintiff revised the claim to cover just the price he had paid for the holiday.
    The lower courts rejected the claim. The plaintiff’s appeal in the Supreme Court was unsuccessful.
  • Legal issue
    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.
  • Decision

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