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11 June 2014
In a December 10 2013 decision (File X ZR 24/13) the Federal Court of Justice deemed two clauses in the terms and conditions of a tour operator regarding flight time changes to be invalid (for further details please see "Times are changing for tour operators – but not passengers". The judgment is now available with its full reasoning.
The claimant was the umbrella association of German consumer centres. The defendant tour operator used terms and conditions which stipulated:
The claimant argued that such clauses were invalid, hoping to obtain a prohibition which would deny tour operators the right to include similar provisions in travel terms and conditions for consumers.
At first instance, the Hannover Regional Court considered Clause A to be valid, but dismissed the remainder of the claim. The Celle Higher Regional Court dismissed the defendant's appeal and held both clauses to be invalid. The defendant appealed, but was unsuccessful.
The provisions used by the tour operator qualified as terms and conditions under civil law and therefore had to be assessed in light of the Civil Code regarding general terms and conditions.
Pursuant to Section 651a of the Civil Code, a tour operator is obliged to perform all travel services for the traveller (eg, from the flight to the holiday destination and hotel accommodation). The flight thus forms part of the tour operator's principal contractual obligations. This obligation is time sensitive and the travel contract must stipulate the time when the obligation must be performed. This follows from the fact that the principal obligation can be performed only if the traveller cooperates and arrives at the airport in good time. The same is also required by EU Directive 90/314/EEC on package travel, package holidays and package tours.
This can be achieved if the tour operator and traveller agree on a certain time and date for flights when entering into the contract. Reaching a precise agreement makes sense where the time between entering into the contract and the traveller's departure is short.
When a travel contract is entered into a long time before departure, it is possible for the tour operator to stipulate a right to specify the performance, which allows it to determine the date of departure and return at a later date. In such cases, the travel contract must stipulate what the scope of this right to specify the performance should be (ie, whether the tour operator has the right to determine the day or the departure and return within a certain timeframe). Alternatively, the parties can agree on an approximate time of departure and return.
However, a flight time agreed on at the time of entering into the contract cannot be such that it does not fulfil the function of stipulating the time of service approximately. In this regard, it must be considered that a tour operator which requires a wide scope for the right to specify the performance need not stipulate an approximate time, but can gain wider scope by agreeing on a sufficiently long timeframe with the traveller.
According to the Federal Court of Justice, it is crucial in any case that the booking confirmation fulfils the functions of informing the traveller reliably. An approximate departure date is thus binding and should never be an advertising tool to entice travellers interested in certain flight times into entering into a travel contract without the tour operator's obligation to stick to the agreed flight times.
According to the Federal Court of Justice, Clause A modified the principal contractual obligation of the tour operator, because it stipulated that the flight times contained in the contract were of only an interim nature, whereas final flight times would only be determined subsequently by the defendant tour operator through provision of the travel documents.
The court deemed the clause to be invalid because, when taking into account the interests of the user, the clause was unreasonable to the traveller. In this regard, the court held that it was unreasonable to the traveller to have to accept unconditionally deviations from the agreed timeframe in the contract. Rather, tour operators when entering into a contract should agree with travellers provisions regarding the approximate flight times, which allow for subsequent specification of the times within a timeframe provided for the in the contract.
In the court's view, Clause B touched on the legal relationship between the tour operator and the travel agent and contained a restriction to the detriment of the traveller. The clause was meant to prevent any information given by the travel agent being attributed to the tour operator. However, the clause encompassed information which could be attributed to the tour operator. The court thus deemed the clause to be invalid, because it resulted in an unfair disadvantage to the traveller.
This decision will necessitate the amendment of tour operators' terms and conditions and will also affect the contractual relationship of tour operators with airlines and travel agencies, as tour operators will want to shift liability for claims by passengers relating to changes in flight times or for a reduction in the travel price arising from the travel contract. In this regard, tour operators are likely to want contracts to reflect the fact that they often depend on information about flight times and potential changes to flight times from the airlines. A possible result of this decision may be higher prices for travellers, as tour operators may in future be unable to maximise bookings on charter flights.
In practice, the difficulty when drafting these types of clause stems from the fact that the Federal Court of Justice did not determine what a valid clause should look like or what a reasonable timeframe for amendments to flight times should be. It is thus paramount to take into account the interests of both the tour operator and the traveller when drafting these clauses. Generally, a conservative approach to choosing a tight timeframe (probably as little as a couple of hours) is prudent.
Finally, the court will soon decide on a similar case brought by the claimant umbrella association (file X ZR 1/14).
For further information on this topic please contact Katherina Sarah Bressler or Ulrich Steppler at Arnecke Siebold Rechtsanwälte by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email (firstname.lastname@example.org or email@example.com). The Arnecke Siebold Rechtsanwälte website can be accessed at www.arneckesiebold.de.
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Katharina Sarah Bressler