RECENT DECISIONS OF THE GERMAN FEDERAL SUPREME

COURT (BGH)PAPER PRESENTED AT THE

IFTTA EUROPE WORKSHOP 2012, ROSTOCK (GERMANY), DR. SANDRA ECHTERMEYER,

ATTORNEY, BERLIN

Introduction

Three of the latest decisions of the German Federal Supreme Court (BGH) with regard to travel contract law:

30.09.2010 Az Xa ZR 130/08:

„qualification of a travel agent as an organizer“ 28.10.2010 Az. Xa ZR 46/10:

„liability of an organizer for train delay (rail & fly packages)“

02.11.2011 Az. X ZR 43/11:

„clarification of scope of insolvency protection regarding packages“

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Facts Plaintiff had booked a combination of air travel and sea cruise and two

hotel nights in Jamaica

The combination was put together individually by a travel agent according to the plaintiff´s request

Plaintiff signed separate bookings for the flights, the cruise and accommodation while every booking mentioned the company (supplier/organizer) offering the respective service as well as the single price for it

At the outward flight her luggage was left behind and only delivered after the cruise was finished

She claimed for price reduction, damages due to additional expenses based on the defect of the journey as well as for immaterial damage in the form of damages for useless spent time of the package

BGH, Decision dated 30.09.2010 Az. Xa ZR 130/08

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Travel Agent

acting as organizer

?

BGH, Decision dated 30.09.2010 Az. Xa ZR 130/08

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Guiding Principles (of the decision)

There is neither a principle derived from experience nor a statutory interpretation rule according to which a travel agent putting together single travel services individually as requested by the customer is to be regarded as organizer

The travel agent typically only acts as an agent without taking responsibility for the proper performance by the suppliers

Only from the offer of several travel services linked to e.o. at the same time and place at the request of the consumer does not follow that a travel agent takes the responsibility for the proper performance of the single travel services like an organizer

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BGH, Decision dated 30.09.2010 Az. Xa ZR 130/08

Reasons (of the decision)

Even though the ECJ in Club-Tour v. Garrido (C-400/00) had held that the term „package“ includes holidays organised by travel agents at the request of and in accordance with the specifications of a consumer or limited group of consumers this would not necessarily mean that the travel agent assumes resonsibility for the proper performance by the suppliers

From the Garrido decision only derives that by putting together a package a travel agent can turn into an organizer (e.g. when suppliers are not mentioned, but an inclusive price) but it does not mean that he will always be an organizer, irrespective of the particular circumstances

Furthermore, as the Package Directive provides that the travel agent can exist beside the organizer and does not have to take responsibility like an organizer, there is no need to file a reference for preliminary ruling to the ECJ regarding the question whether a travel agent acts only as an agent in an individual case

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BGH, Decision dated 30.09.2010 Az. Xa ZR 130/08

Underlying Rules (of the decision)Section 651a German Civil Code: (1) By a package travel contract, a travel organiser is obliged to render for the traveller a complete set of travel services (travel package) for the traveller. The traveller is obliged to pay the travel organiser the agreed price for the travel package.Article 2 of the Package Travel, Package Holidays and Package Tours Directive:For the purposes of this Directive: 1. 'package' means the pre-arranged combination of not fewer than two of the following when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation: (a) transport; (b) accommodation; (c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package. The separate billing of various components of the same package shall not absolve the organizer or retailer from the obligations under this Directive; 2. 'organizer' means the person who, other than occasionally, organizes packages and sells or offers them for sale, whether directly or through a retailer; 3. 'retailer' means the person who sells or offers for sale the package put together by the organizer;…5. 'contract' means the agreement linking the consumer to the organizer and/or the retailer.

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BGH, Decision dated 30.09.2010 Az. Xa ZR 130/08

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Facts Plaintiff had booked a package with „Meier´s Weltreisen“ (organizer), which included air transport from Düsseldorf to the Dominican Republic as well as hotel accommodation and all inclusive board Plaintiff chose a rail ticket to the airport offered by „Meier´s“ („Rail & Fly-Ticket“) promoted in the brochure and in an information leaflet before the journey as avoiding „stress and traffic jams“ and as helping „to start the holiday relaxed by using the comfortable service of Meier´s included in the package price“ Furthermore, „Meier´s“ recommended to choose a train connection which arrives at the airport at least two hours before scheduled departure Plaintiff´s flight was scheduled for departure at 11.15 am while she chose a train which was supposed to arrive at the airport at 09.08 am However, due to a delay of the train, she only reached the airport at 11.45 and missed her flight After having consulted „Meier´s“, she went to Munich and took a flight from there the next day Back home she claimed for compensation of the additional cost caused by missing the flight

BGH, Decision dated 28.10.2010 Az. Xa ZR 46/10

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BGH, Decision dated 28.10.2010 Az. Xa ZR 46/10

Organizer liable for train delay („Rail &

Fly“ package)?

Guiding Principle (of the decision)

By promoting the train connection to the airport and offering the same as additional service of its own and as part of the package, „Meier´s“ had accepted liability for the accurate operation of the train

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BGH, Decision dated 28.10.2010 Az. Xa ZR 46/10

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Reasons (of the decision)

Based on the circumstances in which the defendant organizer acted, the consumer could only assume that the organizer was offering the transfer by train as own service accepting liability for the proper performance of the train

The description of the ticket, the promoting as comfortable service by „Meier´s Weltreisen“ (showing the advantages compared to other means of transport) giving detailed instructions for the selection of the train connection and the fact, that the transfer was included in the price for the package are indications for a service offered of its own

Even though the choice of a particular train had been up to the plaintiff, there was no contributory negligence on behalf of the plaintiff as she had planned her journey with due care and in line with „Meier´s“ instructions

BGH, Decision dated 28.10.2010 Az. Xa ZR 46/10

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Underlying Rule (of the decision)

Section 651c German Civl Code:

(1) The travel organiser is obliged to provide the travel package in such a way that it has the warranted characteristics and is not impaired by faults that cancel or reduce its value or its suitability for the customary use or the use assumed under the contract.

(2) If the travel package is not of this quality, then the traveller may demand relief. The travel organiser may refuse the relief if it requires disproportionate expense.

(3) If the travel organiser does not provide relief within a reasonable period of time set by the traveller, then the traveller may himself provide relief and demand reimbursement of the required expenses. A period of time need not be specified if the travel organiser refuses relief or if immediate relief is required by a particular interest of the traveller.

BGH, Decision dated 28.10.2010 Az. Xa ZR 46/10

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Facts Plaintiffs had booked a cruise at the beginning of 2009

After a guarantee certificate (confirming that the plaintiffs are reimbursed in the event of insolvency of the organizer) of an insurance company had been handed out, the plaintiffs paid the package price to the organizer

In the beginning of August 2009 the organizer informed the plaintiffs that the package will not be performed due to the missing of the sufficient number of persons having booked the package

In the beginning of December 2009 the organizer was insolvent

The plaintiffs claimed for the reimbursement of the package price

BGH, Decision dated 02.11.2011 Az. X ZR 43/11

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BGH, Decision dated 02.11.2011 Az. X ZR 43/11Repayment of

package price in case of cancellation before

insolvency?

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Guiding Principle (of the decision)

The German provision with regard to the insolvency protection has to be interpreted in accordance with Art. 7 of the Package Directive as also covering the repayment of the package price if the organizer had cancelled the package before going bust

BGH, Decision dated 02.11.2011 Az. X ZR 43/11

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Reasons (of the decision)

It is the purpose of the above-mentioned Article of the Directive that the consumer will be protected against any risks in the event of insolvency

Neither Article 7 of the Directive nor the German law would require a causal connection between the insolvency of the organizer and the cancellation of the package

In fact, it is sufficient, that - following the insolvency – the organizer is not able anymore to reimburse the package price for the cancelled package and – naturally - is not able anymore to perform the package

In this sense, also the contracts between the organizer and the insurance company are to be regarded, because they refer to the above-mentioned provisions

Due to the clear wording of the Article 7 in this regard, the BGH saw no reason to file a reference to the ECJ

BGH, Decision dated 02.11.2011 Az. X ZR 43/11

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Underlying Rules (of the decision)

Section 651k German Civl Code:

(1) The travel organiser must guarantee that the traveller is reimbursed

1. the price of the travel package paid to the extent that travel services fail to materialise due to insolvency or the commencement of insolvency proceedings relating to the assets of the travel organiser, and

2. necessary expenses incurred by the traveller for return travel due to insolvency or the commencement of insolvency proceedings relating to the assets of the travel organiser.

The duties under sentence 1 may only be performed by the travel organiser

1. by means of an insurance policy taken out with an insurance company authorised to conduct business operations within the area of application of this Code, or

2. by the promise of payment of a banking institution authorised for business operations within the area of application of this Code.

(2) …

BGH, Decision dated 02.11.2011 Az. X ZR 43/11

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Underlying Rules (of the decision)

Section 651k German Civl Code:

(3) To discharge his duty under subsection (1), the travel organiser must provide the traveller with a direct claim on the customer finance guarantor and must evidence it by handing over a confirmation (guarantee certificate) issued by the customer finance guarantor or at its behest. …

(4) The travel organiser and the travel agent may only demand or accept payments towards the package price from the traveller prior to the end of the travel package if a guarantee certificate has been given to the traveller. …

BGH, Decision dated 02.11.2011 Az. X ZR 43/11

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Underlying Rules (of the decision)

Article 7 of the Package Travel, Package Holidays and Package Tours Directive:

The organizer and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency.

BGH, Decision dated 02.11.2011 Az. X ZR 43/11

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Summary

30.09.2010 Az Xa ZR 130/08:

doubtful whether there was no need to file a reference for preliminary ruling to the ECJ regarding the question whether a travel agent acts only as an agent in an individual case

28.10.2010 Az. Xa ZR 46/10:

in accordance with the previous decisions of the court (in favour of consumer)

02.11.2011 Az. X ZR 43/11:

in accordance with EU-Directive and its purpose (extensive insolvency protection for the consumer)