Case law

  • Case Details
    • National ID: 8 U 2423/01
    • Member State: Germany
    • Common Name:link
    • Decision type: Other
    • Decision date: 27/11/2002
    • Court: Oberlandesgericht (Appellate court, Dresden)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Package Travel Directive, Article 2, 1.
  • Headnote
    1. The question of whether a contract for travel services or a contract with an agent to procure travel services (travel brokerage contract) was concluded is to be answered by means of interpretation of the content of the contractual agreement reached from the perspective of the traveller according to §§ 133, 157 BGB (Bürgerliches Gesetzbuch – German Civil Code).
    2. This distinction does not depend on the descriptions used by the parties, but rather on the conduct of the provider as well as the presentation of the travel brochure.
  • Facts
    The respondent and her then partner K booked a cruise consisting of individual services from a catalogue of H.L. in a travel agency office of the respondent H. According to the “general notes” in the catalogue, an insurance policy for the refund of the holiday price by the Europäische Versicherung AG was included in the travel price. The holiday price should be paid shortly before departure by Mr. K. in the travel agency of H. in cash, in exchange for which the travel documents would be issued. The respondent initially made the booking with the travel organiser K.-Special-Tours/ E.. The travel documents as well as the booking amendment of the respondent each contained the notice: “The travel and payment conditions of the respective organisers form part of the contract”.
    On 11.10.1999 – one day prior to the intended departure date – Mr K. cancelled the travel contract on the instruction of the respondent because she had become ill. K.-Reisen-Special-Tours then charged the travel agent a cancellation fee of 75% of the holiday price, which was subsequently billed to the respondents. The insurance for holiday cancellation costs did not pay out. The respondent also did not make any communication of the damage at the time.
    The claimant seeks payment of the cancellation fees from the travel contract, in the alternative reimbursement of expenses. The Landgericht (district court) dismissed the claim. The Berufung (court to which appeals on points of fact and law are made) was in essence successful.
  • Legal issue
    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.

    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.
  • Decision

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