OGH Rules on Tour Operator GT&Cs

Jan 5, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled that the following clauses in tour operators’ general terms and conditions are invalid:

‘The total price of the package holiday [...] cannot be determined before the conclusion of the contract for the package holiday.’

Under Section 4(1)(3) of the Austrian Package Travel Act (Pauschalreisegesetz, hereinafter PRG), tour operators are obliged to inform travellers of the total price of the package before the contract is concluded. The total price must include all additional fees and charges. If these cannot yet be determined, the nature of the additional costs must be explained.

‘A green fee of EUR 10 will be charged for all bookings and a Peak Week surcharge of EUR 39 will be charged in the first week.’

A green fee is charged for waste disposal. However, this service is already included in the travel and accommodation contract. The Peak Week surcharge is an increased charge for a specific period of travel. This amount is also covered by the actual service charge.

Charging fees without specific additional services and without specific costs is not permitted. This clause is considered by the OGH to be grossly unfair within the meaning of Section 879(3) of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB).

‘A processing fee of EUR 29 per traveller and transaction is payable in the following cases:

• Traveller change (contract transferred).’

Pursuant to Section 7(1)(1) PRG, the package travel contract may be transferred to another person. The handling fee must not be unreasonable and must not exceed the actual costs of the transfer.

As this clause does not provide for any limitation to the actual costs, it is to be regarded as grossly unfair.

‘No special requests made by the traveller have been agreed and have not become included in the contract.’

The operator is not obliged to accept special requests by travellers. However, special arrangements are possible on a case-by-case basis. As this clause would contradict a special agreement, it is grossly unfair to the consumer.

9 Ob 18/23x (27 September 2023)