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EL CONSUMIDOR Y LA COMERCIALIZACIÓN TURÍSTICA EN LA UNIÓN EUROPEA

ALEMANIA

Certain radical changes were introduced into German travel law with effect from November 1, 1994 which may also affect the relationship between tour operators and their sub-contractors. The main changes are as follows:

Price increases, § 651 a, paras. 3 and 4 of the German Civil Code (BGB)

Price increases are only allowed if they have been agreed by the tour operator and the traveller. This is normally done by including the travel and payment conditions in the contract.

Price increases are only possible

If transportation costs increase

If charges are increased or new charges are introduced (seaport or airport charges)

If there, is a charge in exchange rates

Price increases from the 20th day before the journey a not permitted. The traveller is entitled to withdraw from t .e contract at no extra cost in the event of a substantial price increase (5 % of the travel price).

Another basic prerequisite for a price increase is that the journey was booked more that 4 months prior to its commencement.

Performance changes. § 651 a, para. 4 of the German Civil Code (BGB)

Performance changes are only allowed if the tour operator has reserved this right in its, general terms and conditions of business end if the changes are reasonable for the traveller. A performance change is said to be reasonable if the interests of the traveller are only immaterially affected by such change.

The traveller is entitled to withdraw from the contract at no extra cost in the event of a material performance change.

Reversal of the burden of proof for compensation claims, § 651 of the BGB

If, in the event of performance disruptions, the traveller also enforces compensation claims for non performance in addition to claims for a reduction in the travel price, the tour operator has to prove that it was not responsible for the circumstances giving rise to the compensation claim.

Liability limitation to three times the travel price, § 651 h, para 1 BGB

It is no longer possible to limit the contractual liability for bodily injuries to three times the amount of the travel price,.

Liability limitation or exclusion for sub-contractors, § 651 h, para. 2 BGB

The tour operator is only able to invoke liability limitations or exclusions which apply to a sub-contractor under its national law if the aforesaid limitations or exclusions are based on international agreements or legal regulations based on such agreements.

Insolvency safeguard, § 651 k of the BGB

The tour operator has to ensure that the traveller will sustain no financial damage if the tour operator goes into bankruptcy or becomes insolvent after payment of the travel price.

Information regulation

The new information regulation (InfoVO) which came into force on November 23, 1994, calls for a whole range of information, most of which is already included in tour operators' advertising literature, however.

A differentiation is made between obligatory information which always have to be given and information which only has to be given if it is of important as far as the journey is concerned. This can also be included in the catalogue if possible so that it only has to be given again en the booking is made, when the travel arrangements are confirmed or shortly before the journey if any changes have occurred in the meantime.

It is therefore a new requirement that the tour operator is required to provide information in four stages, namely

1. in the brochure

2. before the contract, is concluded

3. in the confirmation of the travel arrangements (new: always to be given in writing)

4. before the commencement of the journey.

As mentioned above, it is possible to refer to the relevant information in the catalogue on certain occasions if this is still valid. What information has to be provided in which stages of the reservation process and w hen a "reference" can be seen in the "Information Obligations" box on the following page.

Travel Contract Law
(New provisions are highlighted in bold type; comments and explanations thereon are in italics)

(1) The travel contract shall commit the tour operator to perform the total of the travel services (travel) for the traveller. The traveller shall be obliged pay the agreed travel price to the tour operator,

(2) The declaration that contracts will only be arranged with persons who are to execute the individual travel services (sub-contractors) shall not apply if it would appear, based on the facts and circumstances, that the declarant will provide the contractually envisaged travel services on its own responsibility,

(3) The tour operator shall only be entitled to increase the travel price if this is envisaged in the contract with exact details for calculating the new price and if thereby an increase in transport costs, charges for certain services such as seaport or airport charges, or a change in the rate of exchange applicable for the relevant journey is taken into account. A price increase claimed with effect from the twentieth day prior to the agreed departure date shall be invalid. § 11 (1) of the law governing general terms and conditions of business shall remain unaffected,

(4) Immediately after becoming aware of the reason for the change or cancellation, the tour operator shall notify the traveller of a change in the travel price in accordance with paragraph 3, an admissible change in a major travel service or an admissible cancellation of the journey. The traveller shall be entitled to withdraw from the contract if the travel price is increased by more than five percent or if there is a material change in a major travel service. Instead, and in just the same was as with a cancellation of the journey by the tour operator, the traveller shall be entitled to request being included in another journey which is at least equivalent to the originally envisaged journey if the tour operator is in a position to offer such a journey at no additional cost for the traveller cut of the other journeys currently offered by the tour operator. The traveller shall claim the aforesaid rights immediately following the aforesaid declaration by the tour operator to the traveller.

(5) After consultation with the Federal Ministry y of Economics, the Federal Ministry of Justice is empowered to pass regulations for the protection of travelling consumers which ensure that descriptions of journeys include no misleading but clear and precise details and disclosures and that the tour operator has provided the consumer with all the necessary information. to this end, it may, in particular, be decided which details and disclosures have to be included in literature issued by the tour operator and in the travel contract and also which information has to provided to the traveller by the tour operator prior to the conclusion of the travel contract and prior to the commencement of the journey,

The new § 651 a, para. 3 of the German Civil Code (BGB) specifies the prerequisites already included in Section 4 of the recommendation of the German Travel Agency Association (DRV) on conditions, according o which the tour operator is allowed to increase prices

d) if specific details are included in the contract on the basis for calculating the new price. For this purpose, it is adequate if it is clear how these additional costs will affect the traveller.

As was previously the case, price increases are not possible it there are less than 4 months between the travel confirmation and the contractually envisaged commencement of the journey (§ 11, Section 1 of the German La w en General Terms end Conditions of Business A GBG). Price increases with effect from the 2Oth day before the travel date are still not allowed (Section 4 of the General Terms and Conditions of Legal Protection Insurance- ARB).

The traveller is entitled to withdraw from the contract at no extra cost if the travel price is increased by more than 5 %. The DR V recommendation en conditions has already provided for a withdrawal ht at no extra cost in the event of substantial price increases. Legislators have new specified what is substantial, namely 5 % of the travel price .

(1) Up to the commencement of the journey, the traveller shall be entitled to request that a third party assumes the tights and obligations under the travel contract instead of the traveller. The tour operator shall be entitled to reject the inclusion of the third party if such third party fails to meet the special travel requirements or if his participation is in breach of the law or official regulations.

(2) If a third party enters into the contract he and the traveller shall be liable to the tour operator for the travel price as joint and several debtors and also for the additional costs incurred as a result of the inclusion of the third party.

Comments

The right of the traveller to allow another person to travel in his place remains unaffected. Based en the new ruling, the traveller and the traveller's replacement are liable to the tour operator for the travel price and any cost as joint and several debtors.

(1) The tour operator shall be obliged to perform the journey in such a way that it complies with the warranted qualifies and has no deficiencies which negate or reduce the value or suitability of the journey for normal purposes or the contractually envisaged purposes,

(2) The traveller shall be entitled to demand remedial action if the journey is lacking in the aforesaid qualities. The tour operator shall be entitled to refuse such remedial action if the costs involved are unreasonable.

(3) If the tour operator fails to provide remedial action within a reasonable period determined by the traveller, the traveller shall be entitled to arrange remedial action himself and to demand compensation for the costs incurred. The setting of a time limit shall not be required if remedial action is refused by the tour operator or if immediate remedial action is required in the special interests of the traveller.

(1) If the journey is defective within the meaning of § 651 c, para. 1, the travel price shall be reduced by the duration of the aforesaid defect in accordance with § 472 of the German Civil Code (BIB),

(2) The reduction in price shall not apply if the traveller culpably refrains from notifying the deficiency to the tour operator.

(1) The traveller shall be entitled to terminate the contract if the journey is adversely and materially affected as a result of a deficiency of the type set out in § 651 c. This shall also apply if the traveller cannot be reasonably expected to undertake or continue the journey for good cause known to the tour operator due to such deficiency.

(2) Termination of the contract shall only be allowed if the tour operator fails to respond within a reasonable period of time set by the traveller without have undertaken remedial action. The setting of such time limit shall not be required if remedial action is impossible or refused by the tour operator or if an immediate termination of the contract is justified by a special interest of the traveller.

(3) The tour operator shall lose its en entitlement to the agreed travel price if the contract is terminated. The travel operator shall, however, be entitled to demand a reasonable compensation as defined in § 471 of the German Civil Code (BGB) for travel services already provided or for travel services yet to be performed for the completion of the journey. This shall not apply if such services cease to be of interest to the traveller as a result of the rescission of the contract.

(4) The tour operator shall be obliged to any necessary action as a result of the rescission of the contract, in particular the return transportation of the traveller if the contract includes return transportation. The additional costs incurred shall be borne by the tour operator.

§ 651 f (Compensation for damages)

(1) Notwithstanding the reduction in the purchase price or termination of contract, the traveller shall be entitled to demand compensation for damages unless the deficiency of the journey was attributable to a circum- stance for which tour operator was not responsible.

(2) If the journey is forestalled or adversely and materially affected, the traveller shall also be entitled to demand reasonable compensation cash for the abortive holiday time involved,

Comments

Especially since the "Nile cruise ruling" of the Federal Supreme Court, the tour operator has been obliged to prove that a travel deficiency was attributable to a circumstances for which it was not responsible. This supreme jurisdiction has now been adopted in German Civil Code by the new § 6,51 f, para, 1. The legal situation has not changed as a result.

(1) The traveller shall be obliged to lodge claims against the tour operator in accordance with §§ 651 c to 651 f within one month of the contractually envisaged completion of the journey, The traveller shall only be entitled to lodge claims after the aforesaid period if he was prevented from complying with the time limit through no fault of his own.

(2) Claims of the traveller in accordance with §§ 651 o to 651 f shall be statute-barred within six months, The limitation period shall on the date on which the journey should have ended according to the contract. If the traveller lodges such claims, the limitation period shall be suspended up to the date on which the tour operator rejects the claims in writing.

(1) The tour operator shall be entitled to limit its liability for damages other than bodily injury to three times the travel price by means of an agreement with the traveller.

1. if the damage sustained by the traveller was caused by neither wilful intent nor grass negligence, or

2. if the tour operator was responsible for the damage sustained by the traveller exclusively on account of a fault on the part of the sub-contractor.

(2) If international agreements or legal regulations based thereon apply for a travel service to performed by a sub-contractor, under which a compensation claims only arises or can only be enforced under certain conditions and subject to certain restrictions, or can only be excluded under certain conditions, the tour operator shall also be entitled to invoke the aforesaid in dealings with the traveller.

Comments

a) Liability limitation

Up to now, it has been possible to limit the contractual liability for personal injuries and property damages to three times the travel price under Section 11.1 of the General Terms and Conditions of Legal Protection Insurance ARB. Since the o-called "Balconi collapse ruling" of the Federal Supreme Court, jurisdiction has clarified that this only applies to property damages, however. Contractual liability for personal injuries cannot be limited to three times the travel price. The new law now makes it clear that the contractual liability for bodily, injuries is unlimited.

Compensation claims of the traveller for fortious bodily injuries which are riot attributable to wilful intent of gross negligence may be limited to DM 150,000 in the opinion of the legal committee of the German Travel Agents Association (DRV). This applies to claims for the payment of damages for pain and suffering or maintenance, for example.

b) International agreements

If legal regulations apply for a travel service to be performed by a sub-contractor, under which a compensation claim only arises under certain conditions, the previous law enabled the tour operator to invoke such regulations in dealings with the traveller. This is no longer possible with the revised version of § 651 h, para 2 of the German Civil Code (BGB). The tour operator is still able to invoke international agreements, however (the Warsaw, Hague and Guadalajara Conventions and the Montreal Agreement). This also applies if national legal regulations are also based on these international agreements. The inferior position of the tour operator is as follows:

If there is a legal liability limitation in a destination area which grants a lower level of protection than the aforesaid international agreements, the sub-contractor may invoke this against its tour operator but not the tour operator against its customer.

Care should therefore be taken to ensure that the applicability of the aforesaid agreements are always agreed in contracts with sub-contractors.

(1) The traveller shall be entitled to withdraw from the contract at any time prior to the start of the journey.

(2) If the traveller withdraws from the contract, the tour operator shall forfeit its right to the agreed travel price.. He shall be entitled to demand a reasonable compensation, however. The amount of the compensation shall be determined by the travel price less the value of the costs saved by the tour operator and the value of what the tour operator can earn by an alternative use of its travel services.

(3) A percentage of the travel price may be fixed in the contract as compensation for each type of travel, taking account of the normal costs saves and the earnings which are normally possible by an alternative use of the travel services,

(1) if the journey is materially hampered,, endangered or negatively affected due to force majeure which cloud not be foreseen, when the contract was signed, both the tour operator and the traveller shall be entitled to terminate the contract in accordance with this provision.

(2) If the contract is terminated in accordance with paragraph 1, the provisions of § 651 e, para, 3, clauses 1 and 2 and paragraph 4, clause 1 shall apply accordingly. The additional costs for the return transportation shall be shared equally by both parties. Other additional costs shall be borne by the traveller.

The extension of the tour operator liability by the Federal Supreme Court contrary to the specific legislative ruling also in the case of force majeure is rendered impossible by this clarification. In future, travellers a only entitled to terminate the contract in accordance with his provision in the case of deficiencies due to force majeure and cannot select a contract termination in accordance with § 651 e which offer them a reduction in p and compensation for damages. The changes therefore improves the legal position of the tour operator.

(1) The tour operator shall be required to ensure that the traveller is reimbursed with

1. the travel price paid if no travel services are performed as a result of the insolvency or bankruptcy of the tour operator, and

2. the necessary costs which the traveller incurs for the return journey as a result of the insolvency or bankruptcy of the tour operator.

The obligations under clause 1 may only be discharged by the tour operator

1. by cover with an insurance company authorised to operate in the area of validity of the present law, or

2. by means of a payment commitments issued by a credit institution authorised to operate in the area of validity of the present law.

(2) The insurer or the credit institution may limit its liability for the total amounts to compensated in any one year under this law to seventy million Deutsche Mark for the first year after October 31, 1994, to one hundred million Deutsche Mark for the second year and to two hundred million Deutsche mark for following years. If the total amounts to be compensated by an insurer or a credit institution under this law in any one year exceed the maximum amounts referred to in clause 1, the individual compensation claims shall be reduced by the ratio of the total amount as a percentage of the maximum amount

(3) In order to discharge its obligation under paragraph 1, the tour operator shall ensure the traveller a direct claim against insurer or credit institution and to document the aforesaid by transmission of a confirmation issued by the insurer or credit institution (trust letter).

(4) Since January 1st 1997, the tour operator may only demand or accept payments from the traveller on account of the purchase price prior to the commencement of the journey if the tour operator has provided the traveller with the aforesaid trust letter.

(5) If, when the contract is signed, the tour operator has main place of business in another member state of the European Community or in a contracting state on the European Economic Space, the tour operator shall also fulfil its obligation under paragraph 1 if it provides the traveller with security in compliance with the regulations of the other state and if such security complies with the requirements of paragraph 1, clause l, paragraph 4 shall apply subject to the condition that the security performance has to be documented and proved to the traveller,

(6) paragraphs 1 to 5 shall not apply if

l. if the tour operator only arranges journeys occasionally and outside the scope of its normal commercial activity;

2. if the length of the journey is less than 24 hours, includes no overnight stay and the travel price does not exceed one hundred and Fifty Deutsche Mark:

3. if the tour operator is a legal entity under public law.

A radical change is introduced about by the tour operator's obligation under § 651 k of the German Civil C (BGB) to safeguard customer advances against the bankruptcy of to tour operator and to ensure that the travellers is reimbursed with the necessary return costs in the event of bankruptcy. For this purpose, the tour operator has to establish a direct claim for the customer against a bank or an insurance company. The law envisaged two possibilities.

1. that an appropriate insurance is concluded

2. that a bank guarantee is issued by a registered credit institution in the Federal Republic.

Journeys arranged by a non-commercial and sporadic tour operator and journeys with a duration of less than 24 hours, which include no overnight stay and cost less than DM 150 are not affected by the aforesaid insolvency obligation.

This statutory safeguarding obligation also applies to operators resident abroad.

The following applies in this case:

Breaches of the duty to provide an insolvency safeguard may be punished as an offence with a fine of up to DM 10,000 in accordance with § 147 b of the German trading regulation

No deviations may made from the regulations under §§ 651 a to 651 k to the detriment of the traveller

§ 147 b (Ban on acceptance of payments for package tours)

An offence will be committed by anyone who requests or accepts a payment from the traveller an account of the travel price

1. without having presented a trust letter, contrary to § 651 k, para. 4 of German Civil Code (BGB), or who

2. without having presented documentation and evidence of a security, contrary to 651 k, para. 4 of the German Civil Code (BGB).

The offence may be punished with a fine of up to ten thousand Deutsche Mark,

Transitional Regulation

If general terms and conditions which comply with the regulations of the present law are included in travel brochures, such travel brochures may continuo to be used until December 31, 1994 if a corrected version of the general terms and conditions of business is attached.

Effective Date

§ 651 k of the German Civil Code and the transitional regulation shall come into effect on July 1, 1994 for travel contra which are concluded after July 1, 1994 and according to which the journey is to commence after October 1, 19 94. The other regulations of the present law shall come into force on November 1, 1994.

Regulation on the information Obligations

of Tour Operators

November 14, l

By virtue of § 651 a, para. 5 of the German Civil Code in the version of Article 1 no. 1 of the law of June 24, 1994 (Federal Gazette I page 1322), the Federal Ministry of Justice together with the Federal Ministry of Federal Ministers of justice decrees as follows with the agreement of the Federal Ministry of Economics ..

§ 1
Brochure Details

(1) if the tour operator makes a brochure available on the journeys arranged by the said operator, legible, clear precise information must be included on the travel price, the amount of the down-payment the due date of the balance and also the following features of the journey if such features are important for the journey:

a) the place of destination:

b) the means of transport (type and class),

c) accommodation (type, location, category y, comfort and main features together with -if available- its registration and tourist classification):

d) meals

e) itinerary,

f) passport and visa requirements for affiliates of the member state in which the journey is offered as well as details an official health formalities which are required for the journey and stay;

g) the minimum number of participants required for undertaking the journey together with details on which date the declaration has to be received by the traveller prior to the contractually agreement commencement of the journey that the number of participants has not been reached and the journey will not be undertaken.

The details included in the brochure shall be binding on the travel operator. The tour operator shall, however, be entitled to declare a change prior to the conclusion of the contract if this reservation right is stated in the brochure. The tour operator and the traveller may agree services which differ from those included in the brochure.

(2) Paragraph 1 shall apply accordingly if details on the arranged journey are included in an audio-visual carrier made available by the tour operator.

§ 2
Information Prior to the Conclusion of the Contract

The tour operator shall be obliged to inform the traveller of the following before the latter confirms his intention based on the conclusion of the contract (booking),.

documents. This obligation relates to the requirements for affiliates of the member state in which the journey is offered.

2. official health formalities

unless the aforesaid details are included in a brochure issued by the tour operator and made available to the traveller and provided no changes have been made in the meantime.

§ 3
Travel Confirmation, General Travel Conditions

(1) When the contract is signed or immediately thereafter, the tour operator shall provide the traveller with a deed on the travel contract (travel confirmation).

(2) The travel confirmation must include the following details if these are important for the type of journey, with the exception of the details on the travel price and payment modalities referred to in § 1. para, 1 and the details of the features of the journey referred to in § 1, para. 1 b. c, d, e and g:

a) the final destination or, if the journey includes a number of stays, the individual places of destination and the individual time periods and dates:

b) the date and scheduled time and place of the outward and return journey:

c) visits, excursions and other services included in the travel price.

d) references to any possible price changes and the factors determining such changes (§ 651 a, para. 3 BGB) and to any charges not includes in the travel price,

e) any special requests of traveller,

f) the name and address of the tour operator and, if appropriate, an insurance company,

g) reference to the obligation of the traveller to notify any deficiencies to the tour operator and reference to the fact that the tour operator has to be set a reasonable period of time for arranging any remedial action before the travel contract is concluded (§ 651 e BGB) unless such remedial action is impossible or refused by the tour operator or if the immediate termination of the travel contract is justified by a special interest of the traveller,

h) reference to the time limits to be observed in accordance with § 651 a BGB, with the name of the agent or office where claims have to be lodged;

i) reference to the possible conclusion of a travel withdrawal insurance or an insurance to cover repatriation costs in the event of an accident or illness, together with the name and address of the insurer.

(3) If the tour operator bases the contract on its general terms and conditions, such terms and conditions must be made available to the traveller in full prior to the conclusion of the contract

(4) The tour operator may also discharge its obligations under paragraphs 2 and 3 by referring to the brochure issued by the tour operator and made available to the traveller, and which complies with the requirements under paragraphs 2 and 3. The travel confirmation shall at all events include the travel price and the payment modalities,

(5) Paragraphs 1 to 4 shall not apply if the booking of the traveller is made less than seven working days prior to the commencement of the journey. However, the traveller shall be informed of the obligation referred to in paragraph 2 g and the details referred in paragraph 2 h no later than upon commencement of the journey.

§ 4
Information Prior to the Commencement of the Journey

(1) The tour operator shall duly inform the traveller of the following prior to the commencement of the journey:

a) the departure and arrival times, places and stop-overs and the connections to be achieved there;

b) the specific seat to be occupied by the traveller if the traveller has to occupy a certain seat during transportation,

c) the name, address and telephone number of the local representative of the tour operator or - if no such representative is available- the local offices which are able to render assistance to the traveller in the event of difficulties; even if there are no such offices, the traveller shall be given an emergency number and other information which can be used to contract the tour operator

If minors are travelling abroad, the persons stated in the booking shall be informed with regard to how a direct connection can be established with the child or with the persons responsible for them at the place of destination.

(2) No special notification shall be required in accordance with paragraph 1 if the information is already available in a brochure made available to the traveller, or in the travel confirmation, and if no changes have been made in the meantime.

§ 5
Sporadic Tour Operators

This regulation does not apply to tour operators which only arrange occasional package tours outside the scope of their normal commercial activity.

§ 6
This regulation shall come into force one day after its announcement,

Bonn, November 14, 1994

The Federal Minister of Justice, S. Leutheuser Schnarrenberger

In the brochure Upon Reservation In the Travel Before Sart of Confirmation Journey Always: clearly legible and Always: presentation of Always: a written travel clear and precise the general terms and confirmation on information on conditions of business (if l. the travel price available) 2. the down payment 3. due date of the balance

If important for the journey: Entry conditions and health a)final destination or a) departure and arrival

a) destination authority formalities duration of individual times, stop-overs and stays if necessary connections

b) means of transport b)means of transport b)seat position (only with (type and class) (type and class) places specified in accommodation advance)

c) accommodation d)meals c)name, address, and (description and e)itinerary telephone number of classification) f) date, probable time, the tour operator's local place of departure and representative; if none

d)meals return. is available, another

e)minimum number of assistance location or

f)travel route participants emergency number of

g)visits, excursions and of the tour operator other services d) (only in the case

h)entry and health

i)price change identifiable minors requirements for reservation with the travelling abroad) nationals calculation factors Notification of the

j)additional charges, e.g. person stated in the airport tax booking with regard g)minimum number of

k)special request of the to how a direct connection participants and the traveller can be made with the date when this must be

l)name and address child or the responsible reached tour operator and the local person. insurance company if appropriate

m)possibility of concluding a travel withdrawal insurance and a repatriation insurance in the event of an accident or tness, togheter with the name and address of the insurance company

n) duties of the traveller to notify complaints and to demand remedial action with the time limit being set before any personal action is taken: night to withdraw from the contract, preclusion and limitations periods as per § 651 g of BGB

o) information on where BUT claims have to be made. Right to make changes. Last-minute bookings possible: all details set out in this. e.g. right to make changes column do not apply for the travel confirmation applies the travel confirmation in the case of last minute bookings (less than 7 working days between the booking and the start of the journey) with the exception of information terms marked n) or o) on time limits and addressees.