ECJ: National Courts May Advise about Cancellation Rights

Nov 10, 2023 Benn-Ibler Rechtsanwälte

Under the EU’s Package Travel Directive, travellers have a right of withdrawal in special circumstances and may be entitled to a refund of all sums paid. However, if travellers are not aware of their right to cancellation, national courts may be under obligation to inform travellers about this, according to the European Court of Justice (ECJ).

A traveller from Spain had booked and paid for a package holiday with Tuk Tuk Travel. He withdrew from the contract because of the spread of the Corona virus about a month before the start of the trip. However, the traveller sought only a partial refund of the price paid for the trip, as he was not represented by a lawyer. He assumed that a quarter of the price was administrative costs for Tuk Tuk Travel.

The Spanish court referred the matter to the ECJ for a preliminary ruling on the question of whether the traveller can be automatically granted a refund of all sums paid in accordance with the requirements of the EU Package Travel Directive. This is because, in the event of exceptional circumstances at the destination, the Directive grants travellers a right of withdrawal free of charge.

The question to be resolved was therefore: Do courts have to inform people about their rights?

The ECJ clarified that, in principle, a travel organiser has an obligation to inform travellers of their right of withdrawal. If this is not done, national courts may decide to investigate whether the right to withdraw granted by the EU Package Travel Directive is infringed. However, certain conditions apply to this ex officio review.

First, one of the parties to the package travel contract in question must have commenced proceedings before the national court and those proceedings must relate to that contract. Second, the right of withdrawal under the Directive must be related to the subject matter of the dispute. Third, the national court must have at its disposal all the legal and factual elements necessary to determine whether the right of withdrawal can be invoked by the traveller concerned. Fourth, there must be no express objection by the traveller to the national court applying the rules.

ECJ C-83/22 (14 September 2023)