The German Federal Court of Justice (BGH) comments on travel cancellation in the event of a Corona outbreak


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The German Federal Court of Justice (BGH) comments on travel cancellation in the event of a Corona

The BGH had to deal for the first time with a travel cancellation due to a Corona outbreak. In the case
at hand, the plaintiff had booked a trip, which was to take place from April 3 to 12, 2020, for more
than 6,000 euros with a Munich tour operator. On March 1, he withdrew from the trip due to the
worsening situation in Japan and paid 25 percent cancellation costs, just under 1540 euros, in
accordance with the contract. At the end of March, an entry ban was issued in Japan, which is why
the trip would have had to be canceled anyway. Now the plaintiff demands the cancellation fees
back. The decisive question is whether he has to pay the cancellation fees despite the entry ban.
According to the law, the customer can cancel his booking at any time. However, the tour operator is
entitled to "reasonable compensation" - the cancellation fees. There is only a right to withdraw free
of charge "if unavoidable, extraordinary circumstances occur at the destination or in its immediate
vicinity, which significantly affect the implementation of the package tour or the transport of persons
to the destination." So far, it is disputed whether it depends solely on the time of the resignation or
also on the further development.
In the case in dispute, the Regional Court based its decision on the time of the declaration of
withdrawal and assumed that a significant impairment of the trip was not yet sufficiently probable at
the time of withdrawal on March 1, 2020. The Federal Court of Justice considers this assessment to
be erroneous because the Regional Court did not address the question of whether the unusual
nature and number of measures taken in Japan up to March 1, 2020 already provided sufficient
indications of a significant risk of infection at that time. For final clarification of this question, it would
have to refer the matter back to the district court. On the other hand, it would not be necessary to
refer the case back for further clarification of the facts if the claim for compensation were already
excluded due to the entry ban ordered after the resignation on March 26, 2020. The Federal Court of
Justice is inclined to the view that circumstances of this kind (also) occurring after the resignation
have to be taken into account. It has referred the question to the Court of Justice of the European
Union because, on the basis of a referral from the Austrian Supreme Court dated January 25, 2022
(8Ob130/21g), it is not sufficiently clear whether Article 12(2) of the Package Travel Directive, the
implementation of which is served by Section 651h of the German Civil Code, is to be interpreted in
this sense.
In the meantime, many tour operators offer free rebooking or cancellation due to corona under
certain conditions. In the case of so-called flex fares, the option can be added for an additional
charge. However, this only applies to package holidaymakers.

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