The federal government is shifting clarification of the cancellation dispute to the courts
As of May 17, 2020 | Reading time: 3 minutes
Make payment or cancel? Despite the foreseeable border openings, thousands of holidaymakers suffer from the unresolved legal situation. The federal government sees responsibility in the courts. The Greens fear a wave of lawsuits.
VMany countries plan to lift travel restrictions, but the uncertainty remains: Can I cancel my summer vacation booked free of charge and will I get my down payment back from the tour operator? Can I refuse the remaining payment for the package tour or will I lose everything?
The Federal Government has now made it clear that legal certainty cannot be expected from it: the courts would have to decide in individual cases.
At least that is what the Federal Government replied to a small question from the Bündnis90 / Die Grünen parliamentary group. According to the German Civil Code (BGB 651), consumers can only withdraw from the package free of charge if “unavoidable exceptional circumstances lead to considerable impairment” at the holiday location.
The question of whether such circumstances still exist due to Covid 19 dangers at the end of June, July or August cannot currently be answered generally, said the Parliamentary State Secretary in the Federal Ministry of Justice and Consumer Protection, Rita Hagl-Kehl: “This can only happen in each individual case. “
Whether a travel warning from the Federal Foreign Office still applied at the time of the planned trip was “an important indication” – but nothing more. The requirements for a free cancellation “may exist regardless of a travel warning from the Federal Foreign Office or may not exist despite such a travel warning”.
The Federal Government cannot create more legal certainty, the State Secretary explains: “An abstract, general rule” with regard to the right of withdrawal “is not considered by the Federal Government”. This would violate the European package travel directive.
The EU Commission, Hagl-Kehl informed the questioners, had confirmed “that the assessment of whether there are unavoidable exceptional circumstances must be made in each individual case”. The courts would have to decide: “The subsumption of the specific individual case under the legal characteristics is reserved for case law.”
This assessment by the Ministry of Justice and Consumer Protection contradicts a legal opinion that was commissioned by the Federal Central Consumer Association (vzbv). WELT AM SONNTAG reported: According to the legal expert Klaus Tonner, “significant impairments” on summer vacation are so likely from today’s perspective that this results in a free cancellation right for all package travel bookings until the end of August.
Package holidaymakers need clarity
“There is complete chaos in the travel sector,” commented the consumer policy spokeswoman for Bündnis90 / Die Grünen, Tabea Rößner, the Federal Government’s response: consumers are “on the nerve end”. There is a massive increase in complaints at the consumer advice centers, but the federal government sees “incomprehensibly no need for action despite this huge mess”.
Since the official travel warning from the Federal Foreign Office expires on June 14, many consumers remain uncertain as to whether and how their package tour could still take place afterwards. With the “succinct answer” that each individual case has to be assessed individually, the Federal Government is proving to be a total failure in this question, Rößner criticizes: “In plain language, this means that the Federal Government is once again leaving consumers out in the cold.”
Consumers now have to make their own decision, says the green consumer rights expert. “Since there are no uniform regulations, I fear that the courts will subsequently be overwhelmed with lawsuits.”
The EU has only made recommendations on this issue, Roessner notes. In the individual member states and also in the federal states, the situation continues to be extremely confusing. “Consumers can neither cancel carelessly nor withhold their payments for the time being – this is an unsustainable state,” said the Greens politician.
Your demand: “The federal government must create legal security and remedies here and not only have a one-sided view of the well-being of tourism companies.”