The company Kuoni Scandinavia AB (“Apollo”) offered package travels to consumers. The packages were sold through the company website, through its own stores and through nearly 300 selected agents. In their agreements (section 5.4, last paragraph) with consumers the following condition was provided:
“If the final flight schedule …. differs from the preliminary with more than 8 hours in each direction, the passenger shall be entitled to cancel the contract if the trip has not begun. If the traveller withdraws from the trip, he or she should be reimbursed the full amount paid by him or her. Withdrawals shall be made promptly, and no later than 4 days after the traveller is informed of the final flight schedule. Changes in the preliminary flight schedule do not entitle the traveller to a price reduction, a replacement trip or any other compensation.”
The Consumer Ombudsman filed suit against Apollo and plead that the Market Court should forbid Apollo under the threat of penalty payments to apply:
1) terms under which the traveller is not entitled to a price reduction, a replacement trip, or damages or other compensation when the final schedule deviates from the agreed preliminary schedule; and to apply
2) the condition that the traveller’s withdrawal shall be made promptly and no later than 4 days after the traveller has been informed about the final flight schedule; or to apply
3) substantially the same terms as under 1) and 2).
First pleading: The petitioner argued that a change of flight schedule with more than 8 hours in each direction is an amendment of the agreement, and that such amendment may legally entitle the traveller to reimbursement, price reduction and damages (§ § 11-14 Package Travel Act (Lagen (1992:1672) om paketresor)). Apollo’s terms exclude all these legal entitlements. The agreement clause is therefore contrary to mandatory applicable law and therefore unreasonable under § 3 Consumer Contract Act (Lagen (1994:1512) om avtalsvillkor i konsumentförhållanden).
Second pleading: The condition is contrary to § 12, third paragraph of the Package Travel Act, i.e. the said period of four days may not always be proper. The Act and the legislative history make it clear that the reasonable time for change is intended to be calculated on a case by case basis. The condition is therefore contrary to mandatory applicable law and as a result of that; unreasonable under § 3 Consumer Contract Act. In any case, the condition causes a significant imbalance between the parties. The condition ensures Apollo to amend the agreement any number of times up until 14 days prior to departure, while the traveller is only allowed to respond within 4 days.
A ban on these types of conditions or terms is in the interest of the public.
The defendant’s arguments were basically that:
1. This particular condition in the agreement with consumers has been applied for more than 18 years by all major tour operations and is approved by the Consumer Agency (Konsumentverket). Hence, it should follow that the condition or term is acceptable market practise.
2. It is not a change or amendment of the agreement to specify the preliminary flight schedule. No rights of consumers should therefore follow from the Package Travel Act.
3. No matter whether rights should follow from the Package Travel Act or not; it is not unreasonable to conclude agreements with preliminary flight schedules and inform the customer about the final time of departure no later than 14 days prior to departure.