In the dispute over cancellation costs after withdrawing from a package tour in the early phase of the corona pandemic, the Federal Court of Justice (BGH) did not make a judgment on Tuesday.

The highest civil judges in Karlsruhe suspended the proceedings and submitted the case to the European Court of Justice (ECJ) in Luxembourg because of open questions (Az. X ZR 53/21).

When the pandemic broke out in March 2020, the plaintiff canceled a package tour to Japan, which had to be canceled a little later anyway.

The man had booked the trip, which was to take place from April 3 to 12, 2020, for more than 6,000 euros with a Munich tour operator.

On March 1, he withdrew from the trip because of the worsening situation in Japan and paid 25 percent cancellation costs, just under 1540 euros, as contractually agreed.

An entry ban was issued at the end of March.

Now the question is: does he still have to pay cancellation fees?

According to the civil senate, the first decision on travel law in the pandemic depends on the interpretation of the EU directive on package tours.

Because the recovery of the cancellation costs depends largely on whether the defendant tour operator cannot itself assert a claim for compensation against the prevented holiday maker.

This means the same cancellation fees.

In the Civil Code, this is provided as a regular consequence if the traveler withdraws from the contract before the start of the trip.

However, the claim is excluded if "unavoidable, extraordinary circumstances occur at the destination or in its immediate vicinity that significantly affect the implementation of the package tour or the transport of persons to the destination".

In its decision on Tuesday, the BGH pointed out that it was disputed in the lower courts and in the literature as to whether such circumstances must already have existed at the time of the resignation, or whether the claim for compensation is also excluded if such circumstances only occurred after the declaration of resignation appeared.

The civil senate considered a referral in the matter unnecessary if compensation for the tour operator was already excluded by the entry ban ordered by the federal government in March 2020.

However, there is a tendency that circumstances of this type that have arisen after the resignation must also be taken into account.

At the end of January 2022, the Supreme Court in Austria had already made a preliminary request on the question of free resignation due to the pandemic.

So far it has been disputed whether it is solely a matter of the time of the resignation or also of further developments.

Depending on the court, the judgment is sometimes one way or the other.

In this case, the Munich I Regional Court had agreed with the organizer because there was no travel warning on March 1, 2020 and the situation could have eased.

“A significant occurrence of infection at this point in time is not reported,” says the judgment.

Submission to the ECJ became apparent

In the BGH hearing at the end of June, it became apparent that the top German civil judges would not agree with this.

However, there are uniform rules for package tours in an EU directive.

Many tour operators now offer free rebooking or cancellation due to Corona under certain conditions.

With so-called flex tariffs, the option can be booked for a surcharge.

Travelers who book flights and accommodation on their own are generally not as well protected as package holidaymakers.

The same rules don't apply to them.