When is a travel agency a tour operator and when is it only a travel agent?

The plaintiff took part in a combined flight and ship trip with two hotel stays in Jamaica booked with the legal predecessor of the defendant travel agency, which was individually arranged in the travel agency according to the plaintiff's wishes. On this trip, her suitcase was not carried on the outward flight. She did not receive it again until after the end of the cruise. The plaintiff demanded a reduction in the price of the trip from the defendant travel agency, damages due to additional costs for the trip caused by defects, and compensation for uselessly spent holiday time.

The district court essentially upheld the action. The court of appeal dismissed it. It held that no travel contract had come into existence between the plaintiff and the defendant pursuant to § 651a (1) BGB, but only a travel agency contract within the meaning of § 675 BGB. The travel agency had not become a contracting party to a travel contract consisting of several travel services as a travel organiser because it had merely offered the travel services of other providers for the conclusion of a contract and in doing so had only acted as an intermediary.

The Federal Supreme Court has confirmed the ruling of the Court of Appeal. According to the Federal Court of Justice, there is neither a rule of experience nor a statutory rule of interpretation according to which a travel agency that combines individual travel services from different service providers into an individual trip tailored to the wishes of the customer is necessarily to be regarded as a tour operator. As a rule, a travel agency typically only takes over the activity of an intermediary of travel services. It cannot be concluded from the mere offer of several travel services coordinated in terms of time and place at the request of the customer that the travel agency assumes responsibility towards the customer like a tour operator for the proper performance of the individual travel services. Nothing to the contrary results from Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. This directive defines in Art. 2 the concept of both organiser and retailer of package tours. The Court of Justice of the European Union (ECJ) ruled in Case C-400/00 (Club-Tour ./. Garrido) that the concept of package travel within the meaning of the Directive also includes travel organised by a travel agent at the request and according to the instructions of the consumer. From this, too, it only follows that a travel agency can be a tour operator in these constellations, but not that it must always be regarded as such, regardless of the specific circumstances of the individual case. In the case decided by the ECJ, the referring national court had come to the conclusion that the travel agency had acted as a tour operator there. The only question submitted to the ECJ was whether it was a package holiday within the meaning of the Directive. In view of the unambiguous wording of the Package Travel Directive, there is also no reason for the Federal Supreme Court to submit the question to the ECJ as to whether a travel agency can be classified as a mere travel agent in an individual case.

Judgment of the Federal Court of Justice (BGH) of September 30, 2010 - Xa ZR 130/08
Previous instances:
AG Frankfurt am Main - Judgment of February 21, 2008 - 30 C 3839/06-25
Frankfurt am Main Regional Court - Judgment of October 30, 2008 - 2-24 S 64/08

Source: Press release of the BGH

Attorney at Law Michael Ullrich, LL. M. (Information Law)
Specialist attorney for information technology law
E-mail: Info@goldberg.de

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