Germany: Corona-related Travel Cancellations vs Cancellation Fees

Sept 23, 2022 Benn-Ibler Rechtsanwälte

In three cases brought before the German Federal Supreme Court (Bundesgerichtshof, BGH), travellers had claimed against their tour operators for reimbursement of their deposit fee for travel arrangements which they had booked but cancelled due to the Corona pandemic. Tour operators countered this with their right to charging a cancellation fee.

In one of the cases, an elderly lady who had already been ill with pneumonia several other times booked a cruise in January 2020. However, due to the pandemic, she cancelled the cruise at the beginning of June and asked for her deposit from the tour operator. Instead, the tour operator charged her a further 85% of the tour price as cancellation costs because the river cruise had been carried out with an appropriate hygiene regime.

In all three proceedings, the merits of the claims depended on whether the respective tour operators were able to counter passenger claims for travel cost reimbursement with their own claim for cancellation fees.

The right to charging a cancellation fee is intended to cover cases where travellers withdraw from a travel contract before the start of the trip. However, such a claim is barred if unavoidable as well as extraordinary circumstances arise at the travel destination or in its immediate vicinity which would significantly impair the organisation of a tour or the transport of passengers to their destination. According to the German Federal Court of Justice, the Corona pandemic is to be considered a condition capable of significantly impairing the organisation of a package tour.

According to the German Federal Court of Justice (BGH), in the case described above, the court of appeal did not make an error of law in finding that at the time of the cancellation of the trip, a significant impairment because of the pandemic was sufficiently likely. An unreasonable risk to the plaintiff's health was present, especially due to rooming constraints aboard a river cruise ship. The fact that vaccination was not available at the time and that there was no treatment for Covid-19 supported the finding of unreasonableness as well.

Press releases on judgements BGH, X ZR 66/21 and BGH, X ZR 84/21 (30 August 2022)