Referral to the Court of Justice of the European Union regarding the Consequences of Withdrawing from a Travel Contract
on grounds of Covid 19

Year of issue 2022
Date of issue 02.08.2022

Decision of 2 August 2022 – X ZR 53/21

The Tenth Civil Panel of the Federal Court of Justice competent, amongst other matters, for package travel law has referred to the Court of Justice of the European Union an issue regarding the interpretation of the Package Travel Directive.

Facts and Circumstances:

In January 2020, the plaintiff had booked with the defendant a holiday travel to Japan for an all-in price of 6,148 Euros; the travel was to take place from 3 through 12 April 2020.

Early February, protective masks were sold out all across Japan. By the end of February, the large amusement parks closed and major sporting events occurred without public attendance only or not at all. On 26 February 2020, the Japanese government decided to completely cancel any major events scheduled for the weeks ahead. The next day they decided to keep all schools closed until early April at the least.

On 1 March 2020, the plaintiff withdrew from the travel contract. The defendant charged the plaintiff for a cancellation fee in the overall amount of 1,537 Euros (25 % of the travel price) which was paid by the plaintiff. On 26 March 2020 a ban to enter Japan was imposed. Thereupon the plaintiff demanded reimbursement of the previously paid amount.

Previous Proceedings:

As demanded by the plaintiff, the local court has ordered the defendant to repay to the plaintiff 1,537 Euros plus interest and out-of-court lawyers’ fees in the amount of 255.85 Euros.

Upon the defendant’s appeal on facts and law, the regional court has reduced the amount to be repaid to 14.50 Euros plus out-of-court costs in the amount of 83.54 Euros; any further claim was dismissed by the regional court.

By means of their appeal on points of law allowed by the regional court, the plaintiff continues to pursue their claim to repayment of the cancellation fee’s full amount.

Ruling of the Federal Court of Justice:

The Federal Court of Justice holds that the decision in this case depends on the interpretation of article 12 (2) of Directive (EU) No. 2015/2302 (Package Travel Directive). Therefore, the Federal Court of Justice has referred the relevant issue to the Court of Justice of the European Union to seek a preliminary ruling in the matter.

The merits of the action depend on the fact whether the defendant travel organiser may counter the plaintiff’s claim to repayment of the travel price with a counterclaim to compensation pursuant to section 651h (1) sentence 3 of the German Civil Code Bürgerliches Gesetzbuch, BGB). Generally, the law provides for such compensation claim as a consequence of the traveller’s withdrawal from the travel contract prior to start of travel. However, the travel organiser’s claim to compensation is excluded pursuant to section 651h (3) BGB, if unavoidable and extraordinary circumstances occur at the place of destination or its immediate vicinity which significantly affect the performance of the travel package, or which significantly affect the carriage of passengers to the destination.

In lower-court case law and literature there are controversial views whether circumstances of the abovementioned nature must have existed already at the time of withdrawal or if the travel organiser’s compensation claim shall be excluded also in case the respective circumstances have occurred only after the traveller declared the withdrawal from the travel contract.

In the matter at hand, the regional court has focussed on the moment the withdrawal was declared and has assumed that a significant impairment of the travel had not been sufficiently probable at the time of withdrawal on 1 March 2020. The Federal Court of Justice considers this assessment to be erroneous, as the regional court did not address the issue whether sufficient indication of a significant infection risk had been established on 1 March 2020 already because of the extraordinary nature and number of precautionary measures undertaken in Japan up to that date. So the Federal Court of Justice would have to remit the case to the regional court for final clarification of this issue.

A remission of the case for further clarification of the facts and circumstances, however, would be unnecessary, if the travel organiser’s compensation claim would be excluded simply because of the ban to enter Japan, which had been imposed after the withdrawal on 26 March 2020. The Federal Court of Justice is inclined to think that circumstances of the described nature have to be considered (also), if they occur only after the withdrawal. Therefore the Federal Court of Justice has referred the issue to the Court of Justice of the European Union, as based on a referral by the Austrian Supreme Court of Justice of 25 January 2022 (8Ob130/21g) it is not sufficiently clarified whether article 12 (2) of the Package Travel Directive, transposed into German law by section 651h BGB, has to be interpreted to this effect.

Lower Courts:

Local Court Munich - judgment of 8 December 2020 - 243 C 10984/20
Regional Court Munich I - judgment of 22 June 2021 - 13 S 669/21

Relevant Legal Provisions:

Section 651h of the German Civil Code (Bürgerliches Gesetzbuch, BGB) - Withdrawal before Start of Travel

(1) Prior to start of travel, the traveller may withdraw from the travel contract at any time. If the traveller withdraws from the contract, the travel organiser will lose their claim to the agreed travel price. However, the travel organiser shall be entitled to claim an appropriate compensation.
(2) …
(3) Deviating from subsection 1 sentence 3 the travel organiser shall not be entitled to a compensation in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the travel package, or which significantly affect the carriage of passengers to the destination. Unavoidable and extraordinary circumstances in the meaning of this subtitle are circumstances, that occur beyond the control of the party invoking them, and whose consequences could not have been avoided, not even in case any reasonable precautions had been undertaken.

Article 12 Package Travel Directive Termination of the Package Travel Contract and the Right of Withdrawal before the Start of the Package

(1) The Member States shall ensure that the traveller may terminate the package travel contract at any time before the start of the package. Where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. …
(2) Notwithstanding paragraph 1, the traveller shall have the right to terminate the package travel contract before the start of the package without paying any termination fee in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination.

Karlsruhe, 2. August 2022