Rechtsliteratur

Consumer Rights Directive, Recitals, (31) Consumer Rights Directive, Chapter 3, Article 12

The Covid 19 pandemic with the worldwide travel warning has led to a collapse of tourism and the tourism industry since March 2020. The article deals with the practice-relevant questions of the compensation-free withdrawal from the travel contract before the start of the trip according to § 651 h BGB (German Civil Code) due to the pandemic and deals with its legal consequences.

Due to the Covid 19 pandemic, which is rampant worldwide, both package and individual travel have come to an almost complete standstill since March 2020. Package travellers are attempting to withdraw from their contracts without cancellation compensation pursuant to section 651 h III of the German Civil Code (BGB) because they are afraid of travelling in corona times and becoming infected with a hitherto unknown virus that can lead to serious health impairments and death. It will be discussed when a significant impairment at the destination can be assumed, and which circumstantial evidence is relevant. The time of withdrawal and its legal consequences are discussed. Great attention is paid in practice to the question of the due date of the payment of the remaining price as well as a plea of uncertainty, a voucher solution as an alternative to reimbursement in money and the problem of the insolvency security of the reimbursement claim. By way of exception, the tour operator's claim for compensation under section 651 h III of the Civil Code (lump sum or specific calculation) does not apply if unavoidable, extraordinary circumstances occur at the place of destination or in its immediate vicinity which significantly impair the performance of the package tour or the transport of persons to the place of destination (section 651 h III 1 of the Civil Code and Art. 12 II of the Directive). In the case of the current Covid 19 pandemic, the existence of unavoidable, extraordinary circumstances is undoubtedly to be affirmed, since recital 31 of the Directive also explicitly mentions the outbreak of a serious illness at the destination as a significant risk to human health as an example. Destinations include not only the travel destination but also places that must necessarily be passed through during the journey to and from the destination as part of the travel services booked. According to recital 31, a free withdrawal should also be granted if a safe journey to the agreed destination is impossible. If the Covid 19 pandemic has therefore already broken out on arrival or at a stopover or port of a cruise, this also fulfils the requirements of immediate proximity to a destination. In this respect, § 651 h III of the Civil Code is to be interpreted in conformity with the Directive.