BGH on cancellation fees: Concrete danger justifies cancellation of the trip

Are tour operators allowed to charge cancellation fees if a package tour is canceled due to Corona? According to the BGH, the more specific the risk of infection, the more likely it is that you can withdraw free of charge.

The law seems clear in such cases. The German Civil Code states: Package travelers can withdraw before the start of the trip. But the organizer can demand reasonable compensation for this – i.e. cancellation costs.

Only: Consumers do not have to pay this compensation if unavoidable, extraordinary circumstances occur that would significantly affect the trip. Is the global corona risk such an unavoidable and extraordinary circumstance that allows free withdrawal?

No clear legal opinion

So far, the courts in Germany have seen this very differently. Therefore, a general clarification by the supreme German civil court, the Federal Court of Justice, is important.

Three different suits

Unfortunately, every case is different. This was shown today when the Federal Court of Justice negotiated three very different lawsuits. The Falls: A Baltic Sea cruise, a Danube cruise and a hotel holiday in Mallorca. All package tours. All planned for summer 2020, in the early months of the pandemic. All canceled by consumers.

In the first case, a man who wanted to take a Baltic Sea cruise in August 2020 had already announced in March, to be on the safe side, that he did not want to go on the trip. In fact, the trip was later canceled.

In the second case, an 84-year-old woman who wanted to take the Danube cruise resigned in June 2020, shortly before the start of the trip – also with reference to a previous pneumonia. However, the river cruise took place despite Corona, only with significantly fewer people and a hygiene concept.

Always cancellation fees required

And in the third case, a man resigned a good month before the start of the trip to Mallorca. The hotel he wanted to go to with his family was closed then.

In all three cases, the tour operators demand the cancellation costs. A big question: What applies if a traveler cancels at a point in time when it is not yet clear that the trip will be canceled one day?

ECJ must have a say

Because it is about EU law, this fundamental question must be clarified by the highest court of the EU, the ECJ in Luxembourg. It is not yet clear how the Baltic Sea cruise will end. In the second case – resignation shortly before the start of the river cruise – the BGH says: The woman was allowed to do that. The risk of infection was already very concrete.

She also did not have to accept the changed hygiene concept, especially since she belonged to a risk group. Even with fewer travelers, the space on a cruise ship is pretty cramped. So she won the process and does not have to pay any cancellation costs.

In the third case, on the other hand, everything is still open. The planned hotel in Mallorca was closed, but others were open. And maybe the tour operator should have offered something else first before the customer was allowed to get off for free.

Concrete danger justifies cancellation of the trip

What do others learn from this who also canceled a trip for fear of Corona? A rule of thumb emerges: The more concrete the danger, the more likely it is that you can withdraw free of charge. But the situations in which cancellation costs can be charged will probably only be clear when the European Court of Justice and the Federal Court of Justice have ruled on several cases.