The Federal Court of Justice (BGH) negotiated its first Corona case on travel law this Tuesday, and it was about the rights of the cautious, if you will: the customer may only lose his right to free cancellation because he canceled too early withdraw from the trip? So at a time when one could still hope that the problem with the corona virus could disappear into thin air?
A prevented traveler who wanted to fly to Japan from April 3rd to 12th, 2020 for a good 6000 euros had complained. But already at the end of February Japan reacted to the emerging pandemic; Major events have been cancelled, schools closed. A travel warning from the Robert Koch Institute did not yet exist, but the plaintiff suspected that his trip would probably not come to fruition. On March 1, he resigned from the contract. He initially paid the cancellation costs of around 1,500 euros. But when an entry ban for Japan was issued on March 26, he demanded his money back.
In the case of package tours, customers may withdraw from the contract at any time before the start of the trip, without giving reasons. The price of this freedom, however, is the organiser’s claim to “reasonable compensation”. A practice has developed according to which the cancellation costs – with deviations in individual cases – are around 20 percent up to 30 days before the start of the trip, or, as in the BGH case, 25 percent. With each week that the start of the trip approaches, the cancellation costs increase by around ten percentage points to 30, 40, 50 percent. And if you cancel on the day of departure, you usually pay 75 percent.
However, the plaintiff refers to a provision according to which no cancellation fee is due in the event of “extraordinary circumstances”. The pandemic was extraordinary, no question about it. However, the Munich I Regional Court had agreed with the tour operator because on March 1st, the day of the resignation, the extent of the pandemic was not yet foreseeable.
The BGH might see it differently. Senate Chairman Klaus Bacher indicated during the hearing that the date of cancellation was probably not important for the free cancellation, but rather the start of the trip. In this case, that would be April 3, and by then the uncertainty of early March had already turned into panic. Travel warnings and bans were in effect.
The verdict will be announced on August 2nd. The BGH may first appeal to the European Court of Justice to clarify what EU law says about the case; a similar case from Austria is already pending at the ECJ. But if the BGH line prevails in the end, the cautious traveler can also subsequently reclaim his cancellation costs if his initial concern has been confirmed.