OGH: Invalid Clause in Package Tour GTCs

Apr 7, 2023 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has confirmed that a complete preclusion of the right to withdraw from a package tour contract at no charge in the case of travel restrictions due to COVID-19 is inadmissible.

In 2021, the defendant tour operator in the case at hand had used the following wording in travel advertisements and booking forms for package tours:

‘(1) Cancellations due to any future 'corona-related' travel restrictions shall no longer result in a free right of withdrawal by the traveller, as everyone should by now be aware of the effects of COVID- 19-related limitations on the freedom to travel.

(2) The right of withdrawal only comes into effect in the case of unavoidable and extraordinary circumstances not yet known at the time of the contract conclusion.

(3)   If such circumstances were already known at the time of booking and did not subsequently deteriorate significantly, a free travel cancellation may not be granted in any event.’

The Austrian Consumer Information Association (Verein für Konsumenteninformation, hereinafter VKI) complained that such clauses are not used in general terms and conditions.

The lower courts, as well as the OGH, ruled in favour of the VKI:

If interpreted in the most anti-customer way, Sentence 1 of the clause could be understood to mean that ‘COVID-19-related’ travel restrictions shall no longer generally lead to the right of free withdrawal and that the right of free withdrawal according Sentence 2 would only become effective in case of other ‘unavoidable and extraordinary circumstances’. Sentence 3 also does not establish a relationship to Sentence 1. However, this overall exclusion of the right to free withdrawal in the case of COVID-19-related travel restrictions contradicts Section 10 (2) of the Austrian Package Travel Act (Pauschalreisegesetz, hereinafter PRG) and is also grossly disadvantageous (Section 879 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

Furthermore, the restrictions leading to the exclusion of free cancellation are only referred to as ‘travel restrictions’ or ‘limitations’, which gives the defendant an unreasonably wide margin of discretion, thus making the clause non-transparent.

The phrasing ‘unavoidable and extraordinary circumstances’ is also non-transparent for lack of specificity. It does not reflect the law in terms of transparency requirements because the wording of Section 10 (2) PRG was not used.

OGH 6 Ob 79/22v (17.02.2023)