Case law

  • Case Details
    • National ID: 130/08
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 30/09/2010
    • Court: BGH (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Package Travel Directive, Article 1
  • Headnote
    From the determining point of view of the average traveller, a travel agency only provides travel services and does not accept any responsibility for the correct execution of the trip. A travel agency does not become a trip organiser who is responsible for potential shortcomings of the trip if it combines several individual services in different places and at different times at the customer’s request. Nothing different can be concluded on the basis of article 651a of the German Civil Code nor from its interpretation compatible with EU-law according to the Directive 90/314/EEC from 13 June 1990.
    If, however, individual services of unnamed service providers are combined prior to any request from the customer and offered for a single price, then the travel agency must be qualified as a trip organiser.
  • Facts
    Claimant no. 1 is a client of a travel agency of which the defendant is the successor in law. Claimant no. 1 reserved for herself and for the two other claimants a flight and a cruise as well as two hotel stays in Jamaica. The combination of the different services had been done by an employee of the defendant on request from claimant no. 1. Claimant no. 1 signed separate contracts for the flights, cruise, and hotel stays, which indicated the individual service providers and the individual prices. For the cruise and the hotel stays claimant no. 1 received a guarantee voucher. For payment claimant no. 1 gave the employee her credit card details and the hotel stays under the designation …-reisen (a branch of the …-Touristik GmbH) and the cruise under the designation S. were paid with the card. Claimant no. 1 paid for the flights by transfer to the travel agency.
    On the first flight the luggage of claimant no. 2, which contained all the personal effects of claimants no. 2 and no. 3, was not transferred. Only after the cruise did claimant no. 2 receive her luggage. For this reason she wants to reduce the cost of the trip by 50%. She claims for the restitution of the price she paid in excess, damages for the costs that she incurred and compensation for the vacation time uselessly spent. At first instance the claim of claimant no. 2 succeeded but the remaining claims were dismissed. The defendant’s appeal was rejected by the court of appeal and she now appeals to the Federal Court of Justice.
  • Legal issue
    According to the court of appeal no package travel contract under article 651a (1) of the German Civil Code existed between claimant no. 1 and the defendant, but a contract to provide access to travel services under article 675 of the German Civil Code. Only a travel agency that offers the combined individual services as its own is a trip organiser. In the present case the travel agency only acted as an intermediary which was made clear by the designation of the individual service providers and the reference to their conditions. In addition, claimant no. 1 signed separate contracts for the individual services that were also paid for separately.
    The opinion of the court of appeal was correct. Since claimant no. 2 had not concluded a package travel contract with the predecessor in law of the defendant she does not have a right to a reduction of the cost of the trip nor a right to damages or compensation. There is no duty of the contract party to fulfil the services on their own responsibility. Travel businesses may act on their own responsibility and potentially use third parties to perform services or to be simple intermediaries. The determination depends primarily on the content of the contract negotiations and the circumstances accompanying it. According to article 651a (2) of the German Civil Code it is primarily the representations made by the business and the impressions they create on the traveller that are determining. The contracting partner of the package travel contract is therefore the party that wishes to fulfil all the services on their own responsibility. The separation in case of individually negotiated contracts must be done under the articles 133, 157, and 164 (2) of the German Civil Code and in particular article 651a (2) of the German Civil Code. Simply the fact that the travel agency has combined several services on request from the client does not make it into a trip organiser. For this assumption relevant experiences and legal rules of interpretation are necessary.
    A travel agency is generally only an intermediary, which does not bear the responsibility of the correct execution of the trip. Neither article 651a of the German Civil Code nor an interpretation of it that is compatible with EU-law under the Directive 90/314/EEC creates a rule of interpretation under which a travel agency must be considered to be a trip organiser if it combines on request from the client a trip from the services of several individual service providers.
    According to article 2 of the Directive, a package travel is a combination of at least two described travel services combined in advance. The trip organiser is then the person who organises the package travel and sells it directly or via an intermediary or offers it for sale. Article 2 no. 3 of the Directive defines as an intermediary the person who sells or offers for sale a package travel created by a travel organiser. According to the ECJ, the term package travel also includes a trip that has been created on request from the client or for which the contract formation coincides with the combination of the services. The contractual position of the travel agency has not been determined by the ECJ. The Directive does not specify either whether a travel business offers the travel services independently on its own responsibility to the client or whether it acts merely as an intermediary. Both alternatives are therefore possible. Whether a responsibility of the intermediary should arise from the contract is to be determined by the provisions of the Member States. Articles 2 (5), 4 (7), and 5 (1) and (2) of the Directive cite rights to damages or compensation merely as (optional) regulatory alternatives to the obligation of the organiser.
    German law holds merely the trip organiser responsible as contractual partner of the traveller under article 651a ff. of the German Civil Code.
    The client does not have the rights named by the Directive merely because several travel services were booked at the same time. The Directive’s application is conditioned on the contract’s object being a package travel. A trip is a package travel under article 2 no. 1 of the Directive when two named elements are present and a unitary price was paid. At least the last element is not present on the facts. A unitary price requires that a contract be present from which the total price is clear to the consumer. This may be the case when the price alone is given or when the individual prices of the services are legally linked by the contract into a unitary price. If individual contracts for individual services were formed then the Directive does not apply even when the contracts were provided by the same person. It is not necessary to refer these questions to the ECJ. The established case law of the ECJ does not require a referral when there are no reasonable doubts as to the application of EU-law, as is the case here. The formulation of the Directive indicates clearly that a trip organiser and an intermediary may coexist and that the latter need not necessarily have any obligations arising out of the contract.
    The opinion of the court of appeal according to which the predecessor in law of the defendant had only been an intermediary to the contract is reasonable and correct. The objection in the Federal Court of Justice that the court of appeal had committed a procedural error in not accepting an offered proof was rejected by the Federal Court of Justice after examination.
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result