If holidaymakers were surprised by corona restrictions during their trip, they can get part of the cost of their package refunded by the tour operators. According to EU law, they are entitled to a reduction in the price of their holiday if the package tour is not fulfilled in accordance with the contract. This has been established by a recent ruling of the European Court of Justice (ECJ) (Ref. C-396/21 and C-407/21).
The complaint concerned package holidaymakers who had booked a trip to the Canary Islands via FTI Touristik at the beginning of the Covid-19 pandemic from 13 to 27 March 2020. Due to the pandemic, their trip ended after seven days and they returned to Germany, where they demanded a price reduction of 70 per cent of the pro-rata travel price for seven days. The organiser refused to reduce the price because, in his view, he could not be held responsible for a "general risk of life".
The claim was rejected at first instance, whereupon the couple turned to the Munich I Regional Court. The latter brought the case before the ECJ and submitted the question of whether travellers were entitled to a price reduction for a lack of conformity with the package travel contract even if it was caused in order to contain the spread of an infectious disease worldwide. In particular, the court considered it necessary to clarify on whom the risk of the pandemic was to be imposed. The restrictive measures ordered to combat the corona pandemic could also be classified as a "general risk of life", which would exclude the tour operator's liability.
Circumstances for lack of conformity do not matter
The ECJ clearly put a stop to this assessment. In the matter, it ruled that the question of reduction of the travel price depends only on the objective conditions that the tour operator has not fulfilled its contractual obligations. The underlying reasons for the tour operator's breach of contract – why it was unable to provide the services covered by the package tour, such as flights, accommodation, or rental cars, or could only do so inadequately – are irrelevant.
Thus, it is sufficient for the price reduction of the package tour that the travellers had to break off their holiday and had not been able to derive any holiday enjoyment from their trip beforehand, as they were not allowed to leave the hotel room and the hotel denied them, for example, the pool and announced animation programmes.
Voucher redemption also excluded
The voucher practice of travel events was also clearly addressed in the judgement: Since the rule contained in the Directive provided for reimbursement in money alone, any alternative mandatorily provided by the tour operator, in particular in the form of a voucher, was excluded. However, this does not prevent the traveller from voluntarily opting to receive such a voucher after the event giving rise to the right to reimbursement has occurred.
Exceptions to the Union's right to freedom of movement could not justify exceptions, in particular to the traveller's right to reimbursement. According to the judge's understanding of Directive 2015/2302, the pandemic is not excluded from the scope of the term "unavoidable and extraordinary circumstances", nor from the scope of that directive as a whole. While the principle of force majeure in the case of objective impossibility to comply with Union law could allow some flexibility in the application of the law and grant tour operators a very limited possibility of temporary exemption from the performance of their obligations, it does not allow for the possibility of a voucher to be offered in the case of an unavoidable and exceptional circumstance. The offer of a voucher disadvantages travellers.
Three-year claim for damages
Claudia Brosche, air passenger rights expert at Flightright, commented: "We welcome this positive ruling for holidaymakers. Many were so caught off guard by the spontaneous Corona measures, which differed in many countries, that holidays were hardly to be thought of. Even for flights that were included in the package holiday, holidaymakers can make a claim for a reduction in the price of the holiday. It is important to know that travellers in Germany have three years to file claims against tour operators. For those affected by Corona, this means that they can still make their claims until the end of this year."
And the law firm Dr. Stoll & Sauer also welcomes the ruling: "The ECJ has handed down a highly consumer-friendly ruling. Package travellers can claim their money back under certain circumstances if the trip was thwarted by Corona measures".