GERMANY: Burden of Proof in Travel Compensation

Aug 12, 2022 Benn-Ibler Rechtsanwälte

The German Federal Supreme Court (Bundesgerichtshof, BGH) ruled on the burden of proof by a tour operator with regards to claim for reasonable compensation in the case of cancella-tion of a trip by travellers before the beginning of a trip. Even if a travel company uses the ser-vices of other cooperation partners, merely hinting at such cooperations as well as possible cancellation fees owed to such companies in case of cancellation is not sufficient evidence.

In the case at hand, the plaintiff concluded a package tour agreement with the defendant, a tour operator, for a trip to Australia for himself and his wife in the amount of EUR 24,248.50. Five days before the trip, the plaintiff cancelled the trip due to his wife's falling ill. The general travel terms and conditions of the tour operator provided for lump-sum compensation: ‘The compensation shall be calculated by the date of receipt of the declaration of withdrawal ... as follows: (...) up to the 5th day before departure: 70%.’ The travel company refunded the couple a portion of the trip costs they had already paid of EUR 8,134.89 and retained the rest as lump-sum compensation. The couple considered a lump-sum compensation exceeding 50% of the travel price to be unreasonable and filed a claim for reimbursement of an additional EUR 3,989.36.

In principle, it is possible for a tour operator under Section 651i (2) sentences 2 and 3 of the German Civil Code (Bürgerliches Gesetzbuch aF) to demand reasonable compensation if a traveller cancels the contract before the start of the trip. In the present case, however, accord-ing to the court, the tour operator did not sufficiently prove the applicability of lump-sum com-pensation.

Tour operators cannot evade their obligation by claiming that, in the event of a cancellation, they themselves have to pay a lump-sum compensation to another company affiliated with the corporate group from which the tour operators obtain travel services based on cooperation agreements. According to the German Federal Court of Justice (BGH), the tour operator is legally responsible to explain all relevant conditions as well as to prove which options might exist to save expenses or to basically use such services in different ways.

BGH, X ZR 12/21 (24.05.2022)