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First final ruling made on withdrawal from package trips due to coronavirus

27/08/2020

At this time of the coronavirus pandemic, most disputes between travel agencies and their clients probably relate to whether a customer can withdraw from a purchased trip without paying a cancellation fee. A final court decision of 11 August 2020 addresses this issue. This ruling can provide information for dealing with certain ongoing disputes.

The story began at the end of 2019, when a customer purchased a package trip to the island of Ischia in Italy. The trip was to begin 14 April 2020 with a flight from Hamburg to Naples. On 7 March 2020, the customer withdrew from the trip contract, and in a letter addressed to the travel agency stated: "Due to the extraordinary circumstances in Italy and my illness... I would like to cancel my trip. Due to the current situation I ask for leniency and waiving of the cancellation fee (25%)." The travel agency did, however, charge the cancellation fee and the customer fought back by filing a lawsuit. In this specific case the court sided with the customer, and ruled that the travel agency was obliged to return the full price of the trip. But the deliberations that led the court to make this ruling are also important.

First of all, the recommendation of the Ministry of Foreign Affairs to not travel to a certain destination is not, in the court's opinion, a necessary precondition for withdrawal without paying for cancellation. This is merely a guideline. In addition, other circumstances must also be taken into account. For example, the fact that at that time, Italy had decided to close schools for fourteen days, and adapt measures concerning restrictions on training and congresses for medical staff. In this specific case, at the time of withdrawal from the contract, the German ministry had not issued a recommendation not to travel to the Naples area, the destination of the trip.

Second of all, a customer's withdrawal must not be premature. As of the day of withdrawal from the contract, there must be at least a 25% likelihood that extraordinary circumstances will prevail on the day the trip is scheduled to take place. This likelihood should be assessed individually on a case-to-case basis. In general, it is also true that the sooner the consumer withdraws, the lower the likelihood of extraordinary circumstances. The German expert literature states that four weeks before departure is generally not premature for a cancellation, i.e. it is possible to assess whether there is at least a 25% likelihood for extraordinary circumstances to exist at the time of the trip.

Thirdly, it is not a deciding factor whether the trip takes place or not after the customer has withdrawn. Even if the trip is cancelled by the travel agency itself at a later date after the customer’s cancellation, it  does not imply that the customer qualifies to have their cancellation fee refunded.

Lastly, a 25% likelihood of the extraordinary circumstances prevailing at the time the trip commences is to be proven by the customer. Nevertheless, this burden of proof must not be interpreted too strictly so as to be to the client's detriment.

This ruling was issued by the District Court in Frankfurt am Main. It is thus an assessment of a dispute between a German travel agency and a German client. However, it should be noted that the Directive 2015/2302 on package travel and linked travel arrangements, which governs the regulations applicable to package trips, is the same for all EU Member States, and its interpretation should be uniform. For this reason, this ruling is also important for Czech travel agents and their clients.