Opinion of the Advocate General — ECLI:EU:C:2024:218
Date: 2024-03-07
Language of the case: German;Dutch
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria;Belgium

Translation C-771/22 – 1 
Case C-771/22 
Request for a preliminary ruling 
Date lodged: 
19 December 2022 
Referring court: 
Bezirksgericht für Handelssachen Wien (Austria) 
Date of the decision to refer: 
17 October 2022 
Applicant: 
Bundesarbeitskammer 
Defendant: 
HDI Global SE 
  
… 
REPUBLIC OF AUSTRIA 
BEZIRKSGERICHT FÜR HANDELSSACHEN WIEN (District Court for 
Commercial Matters, Vienna)  … 
DECISION 
IN THE CASE OF: 
Applicant    … 
Bundesarbeitskammer (Federal Chamber of Labour, Austria)  … 
1040 Vienna, Austria   ... 
Defendant    ... 
HDI Global SE   ... 
...    ... 
EN 
REQUEST FOR A PRELIMINARY RULING OF 17. 10. 2022– CASE C-771/22 
 
2  
30659 Hanover, Germany   ... 
Concerning: 
The amount of EUR 4 500.00 plus interest and costs 
I. 
The following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling pursuant to Article 267 TFEU: 
1. Is Article 17 of Directive (EU) 2015/2302 of the European Parliament 
and of the Council of 25 November 2015 on package travel and related 
travel services, amending Regulation (EC) No 2006/2004 and 
Directive 2011/83/EU of the European Parliament and of the Council 
and repealing Council Directive 90/314/EEC (‘Directive 2015/2302’) 
to be interpreted as meaning that payments made by a traveller to the 
travel organiser before the start of the trip or holiday are only covered 
where the trip or holiday does not take place as a result of the 
insolvency of that travel organiser, or are also payments made to the 
travel organiser before the opening of insolvency proceedings covered 
if the traveller terminates the contract before the occurrence of 
insolvency due to exceptional circumstances within the meaning of 
Article 12 of  Directive 2015/2302? 
2. Is Article 17 of Directive (EU) 2015/2302 of the European Parliament 
and of the Council of 25 November 2015 on package travel and related 
travel services, amending Regulation (EC) No 2006/2004 and 
Directive 2011/83/EU of the European Parliament and of the Council 
and repealing Council Directive 90/314/EEC (‘Directive 2015/2302’) 
to be interpreted as meaning that payments made by a traveller to the 
travel organiser before the start of the trip or holiday are covered 
where, even before the occurrence of insolvency, the traveller 
terminates the contract due to exceptional circumstances within the 
meaning of Article 12 of that directive, but the insolvency occurred 
during the trip or holiday that had been booked? 
3. Is Article 17 of Directive (EU) 2015/2302 of the European Parliament 
and of the Council of 25 November 2015 on package travel and related 
travel services, amending Regulation (EC) No 2006/2004 and 
Directive 2011/83/EU of the European Parliament and of the Council 
and repealing Council Directive 90/314/EEC (‘Directive 2015/2302’) 
to be interpreted as meaning that payments made by a traveller to the 
travel organiser before the start of the trip or holiday are covered 
where, even before the occurrence of insolvency, the traveller 
terminates the contract due to exceptional circumstances within the 
meaning of Article 12 of that directive, and the insolvency of the travel 
organiser occurred due to those exceptional circumstances? 
BUNDESARBEITSKAMMER 
 
3 
... 
GROUNDS 
Relevant provisions of Union law 
[1] The request for a preliminary ruling serves for clarification of the 
interpretation of the following provisions of directives: 
• Article 17 of Directive (EU) 2015/2302 of the European Parliament 
and of the Council of 25 November 2015 on package travel and related 
travel services, amending Regulation (EC) No 2006/2004 and 
Directive 2011/83/EU of the European Parliament and of the Council 
and repealing Council Directive 90/314/EEC (the Package Travel 
Directive).  
The facts of the dispute in the main proceedings 
[2] The Austrian consumer XY concluded a package travel contract on 3 March 
2020 with Flamenco Sprachreisen GmbH (‘Flamenco’), also established in 
Austria - as travel organiser for a trip or holiday to Las Palmas, Grand Canaries 
from 3 May 2020 to 2 June 2020. 
[3] The EUR 2 656.00 price of the trip or holiday was paid by the consumer in 
its entirety on 9 March 2020. The consumer XY cancelled the trip or holiday with 
the organiser Flamenco on 16 March 2020 and justified this by the call by the 
Government to stay at home, the current level 6 travel warning for Spain and its 
neighbouring countries and the extension to his civilian service. 
The right to terminate the contract for the trip or journey due to exceptional 
circumstances was agreed in the contract, and was therefore justified, and was also 
not challenged in the proceedings. 
[4] Insolvency proceedings of Flamenco ... were opened on 20 May 2020 before 
the Landesgericht Linz (Regional Court, Linz, Austria). The undertaking ceased 
its operations. Following the final distribution [of the undertaking’s assets] the 
insolvency was closed by order of 9 June 2022, which became final.  The quota 
allocated to the -creditors in insolvency after the distribution  was 51.11%. 
The liquidator formally terminated the package travel contract on 8 June 2020. 
[5] The first defendant, TVA-Tourismusversicherungsagentur GmbH, …, as 
solely the liquidator of the claims, has already been released from the proceedings, 
due to its lack of standing to be sued. The second and now only defendant, HDI 
Global SE, is Flamenco’s insurer. Both concluded a contract of insurance 
covering package travel insurance to cover risk, in accordance with Paragraphs 3 
to 5 of the Verordnung der Bundesministerin für Digitalisierung und 
Wirtschaftsstandort über Pauschalreisen und verbundene Reiseleistungen  (Decree 
REQUEST FOR A PRELIMINARY RULING OF 17. 10. 2022– CASE C-771/22 
 
4  
of the Federal Minister for Digital and Economic Affairs on package travel and 
related travel services (‘the Decree on package travel’) ... (more in paragraph 12). 
Applicable EU law 
[6] The legal and administrative provisions relating to contracts for package 
travel and associated travel services between travellers and traders are harmonised 
by means of various directives of the Council as well as by the European 
Parliament and the Council. Most recently, Directive (EU) 2015/2302 of the 
European Parliament and of the Council of 25 November 2015 on package travel 
and related travel services was adopted, amending Regulation (EC) No 2006/2004 
and Directive 2011/83/EU of the European Parliament and of the Council and 
repealing Council Directive 90/314/EEC. 
[7] Article 7 of the above-mentioned Directive 90/314/EEC, now repealed, 
provided, in essence, that in the event of insolvency the contracting party 
(organiser or retailer) was to provide for the refund of money paid over and for the 
repatriation of the consumer. 
[8] Article 7 of Council Directive 90/314/EEC of 13 June 1990 on package 
travel (see, in that regard, paragraph 24 et seq.) has already given rise to a number 
of preliminary ruling procedures: 
• judgment of 14 May 1998 in - Verein für Konsumenteninformation v 
Österreichische Kreditversicherungs AG, C-364/96, 
ECLI:EU:C:1998:226, 
• judgment of 15 June 1999 in Rechberger and Others v Republik 
Österreich, C-140/97,  ECLI:EU:C:1999:306, 
• judgment of 16 February 2012 in Blödel-Pawlik v HanseMerkur 
Reiseversicherung AG, C-134/11, ECLI:EU:C:2012:98, 
• order of 16 January 2014 Baradics and Others v QBE Insurance 
(Europe) Ltd Magyarorszägi Fiöktelepe and Magyar Ällam, C-430/13, 
ECLI:EU:C:1998:226 
[9] Article 17 of Directive (EU) 2015/2302 of the European Parliament and of 
the Council of 25 November 2015 on package travel and related travel services, 
currently in force, provides: 
‘(1) Member States shall ensure that travel organisers established in their 
territory provide security for the refund of all payments made by or on 
behalf of travellers in so far as the relevant services are not performed as a 
consequence of the organiser’s insolvency. If the carriage of passengers is 
included in the package travel contract, organisers shall also provide security 
for the travellers’ repatriation. Continuation of the package may be offered. 
BUNDESARBEITSKAMMER 
 
5 
Organisers not established in a Member State which sell or offer for sale 
packages in a Member State, or which by any means direct such activities to 
a Member State, shall be obliged to provide the security in accordance with 
the law of that Member State. 
(2) The security referred to in paragraph 1 shall be effective and shall 
cover reasonably foreseeable costs. It shall cover the amounts of payments 
made by or on behalf of travellers in respect of packages, taking into account 
the length of the period between down payments and final payments and the 
completion of the packages, as well as the estimated cost for repatriations in 
the event of the organiser’s insolvency. 
(3) An organiser’s insolvency protection shall benefit travellers regardless 
of their place of residence, the place of departure or where the package is 
sold and irrespective of the Member State where the entity in charge of the 
insolvency protection is located. 
(4) When the performance of the package is affected by the organiser’s 
insolvency, the security shall be available free of charge to ensure 
repatriations and, if necessary, the financing of accommodation prior to the 
repatriation. 
(5) For travel services that have not been performed, refunds shall be 
provided without undue delay after the traveller’s request.’ 
[10] In so far as the referring court can determine, the Court of Justice has not 
delivered any more recent judgments regarding Article 17 of Directive 2015/2302. 
Applicable national law 
[11] Article 17 of Directive 2015/2302 was substantially transposed in Austria by 
Paragraph 3 of the Verordnung der Bundesministerin für Digitalisierung und 
Wirtschaftsstandort über Pauschalreisen und verbundene Reiseleistungen (Decree 
of the Federal Minister for Digital and Economic Affairs on package travel and 
related travel services; ‘Decree on package travel’) .... 
[12] Paragraph 3 of the Decree on package travel, which has not been amended, 
reads as follows: 
‘Paragraph 3. (1) Persons entitled to organise travel services must ensure 
that the traveller is compensated for: 
I. payments already made (advance payments and the balance) in so far as, 
because of the  insolvency of the person entitled to organise travel services, the 
travel services are not provided in whole or in part or if the supplier requires the 
traveller to pay for those services; 
REQUEST FOR A PRELIMINARY RULING OF 17. 10. 2022– CASE C-771/22 
 
6  
1. expenditure necessary for the return transport and, if necessary, the 
cost of accommodation before repatriation incurred as a result of the 
tour organiser’s insolvency or, in the case of liability for the carriage 
of passengers, of travel services connected to the intermediary; and 
2. where appropriate, reimbursement of the expenses necessary for the 
continuation of the package travel or the provision of ancillary travel. 
…’ 
[13] Article 12 of Directive  2015/2302 of was transposed in Austria by 
Paragraph 10 of the Bundesgesetz über Pauschalreisen und verbundene 
Reiseleistungen  (Federal Law on package travel and related travel services; 
‘Federal Law on package travel’) .... 
[14] Paragraph 10 of the Federal Law on package travel reads as follows: 
‘Paragraph 10. 
(1) The traveller may at any time terminate the package travel contract 
before the commencement of the package tour without stating any 
justification for so doing. Where the traveller terminates the package travel 
contract under this paragraph, the tour organiser can require the traveller to 
pay an appropriate and reasonable termination fee. The package travel 
contract may specify reasonable standardised termination fees based on the 
duration between the termination of the contract and the expected start of the 
package tour and the expected cost savings and income from alternative use 
of the travel services. In the absence of specified standardised termination 
fees, the amount of the termination fee shall correspond to the price of the 
package tour minus the cost savings and income from alternative uses of the 
travel services. At the traveller’s request the organiser shall provide reasons 
for the amount of compensation. 
(2) Without prejudice to the right of termination provided for in 
subparagraph 1, the traveller may terminate the package travel contract 
before the start of the package without paying any compensation in the event 
of unavoidable and exceptional circumstances occurring at the place of 
destination or its immediate vicinity and significantly affecting the 
performance of the package, or which significantly affect the carriage of 
passengers to the destination. If the traveller terminates the package travel 
contract under this subparagraph, he or she shall be entitled to a full refund 
of any payments made for the package, but shall not be entitled to additional 
compensation. 
… 
(4) In the event of termination as referred to in the preceding paragraphs, 
the organiser shall refund to the traveller, without delay and at the latest 
within 14 days of receipt of the notice of termination, all sums paid in 
BUNDESARBEITSKAMMER 
 
7 
respect of the package tour by the latter or in the name of such traveller after 
deduction of the compensation provided for in paragraph 1.’ 
The first question referred 
[15] This question is relevant in the present cases because the consumer 
terminated the travel contract before the start of the trip or holiday and the travel 
organiser became insolvent subsequently. 
[16] The applicant takes the view that it follows from the intended protection of 
Article 17 of Directive 2015/2302 that, even in these cases, a traveller has a right 
to the insolvency protection. That could be inferred, in particular, from recital 39 
on the basis of the following wording: ‘are fully protected’. Therefore, the 
existence of a causal link should not be decisive. Accordingly, if the traveller were 
to terminate the contract on the basis of becoming aware from the media of 
imminent insolvency, this would not be covered by the insolvency protection. 
[17] The defendant is of the view that this question must be resolved exclusively 
at the level of national law. Furthermore, the wording of the directive militates in 
favour of a causal link. According to the defendant, the insolvency must therefore 
be the origin for non-provision or poor provision of the travel service. 
[18] Both the wording of the national provision and the EU law provision suggest 
a causal link because of the prepositional phrases ‘in so far as’ and ‘as a 
consequence’, which would mean that claims for reimbursmentst as a result of an 
earlier termination due to insolvency are not covered by the insolvency protection. 
However, recital 39 of Directive 2015/2302 suggests otherwise, an extract of 
which states: ‘Member States … should ensure that they provide security for the 
refund of all payments made by or on behalf of travellers and … for the traveller’s 
repatriation in the event of the organiser’s insolvency’ This view is supported by 
the high level of consumer protection in the EU (Article 114(3) and Article 169 of 
the TFEU as well as Article 38 of the Charter of Fundamental Rights of the 
European Union). 
[19] The question of the extent of the insolvency protection was already 
addressed with the Member States in a Commission workshop … On the one 
hand, the Commission states that the legislature’s intention was not to reduce the 
protection by amending the wording … Article 7 of Council Directive 
90/314/EEC of 13 June 1990 on package travel still used the wording ‘in the event 
of insolvency’, whereas Article 17 of Directive  2015/2302 uses the wording ‘in 
so far as the relevant services are not performed as a consequence of the 
organiser’s insolvency’. On the other hand, according to the Commission, there is 
expressly no entitlement where the contract came to an end before the occurrence 
of insolvency … 
[20] As regards the former law , the Court has already held, in the judgment of 
16 February 2012 Blödel-Pawlik v HanseMerkur Reiseversicherung AG, 
C-134/11, ..., that the fundamental purpose of Article 7 of Council Directive 
REQUEST FOR A PRELIMINARY RULING OF 17. 10. 2022– CASE C-771/22 
 
8  
90/314/EEC of 13 June 1990 on package travel was to ‘ensure that the … refund 
of money paid over [by the consumer] are guaranteed in the event of insolvency or 
bankruptcy on the part of a travel organiser’. Furthermore, ‘[it] d[id] not attach to 
the guarantee any specific condition regarding the causes of the travel organiser’s 
insolvency (judgment cited above, paragraph  20 et seq.). 
[21] Already in 1999, in Rechberger and Others v Republik ÖsterreichC-140/97, 
the Court held that Article 7 of Council Directive 90/314/EEC of 13 June 1990 on 
package travel ‘imposes an obligation of result, namely to guarantee package 
travellers the refund of money paid over … in the event of the travel organiser’s 
bankruptcy.’ 
[22] In the judgment of 14 May 1998 in Verein für Konsumenteninformation v 
Österreichische Kreditversicherungsungs AG, C-364/96, the Court held, however, 
that ‘ ‘the purpose of Article 7 [of Council Directive 90/314/EEC of 13 June 
1990] is to protect consumers against the risks arising from the insolvency of the 
package holiday or tour organiser.’ 
[23] It is therefore necessary to examine the question of interpretation of whether 
the claims to refunds, which arise due to termination of the package travel contract 
before the occurrence of insolvency, are included in the insolvency protection for 
an insolvency occurring subsequently. In other words, whether a causal link 
between the insolvency and the non-provision or poor provision of the travel 
service must exist. 
The second question referred 
[24] If the answer to the first question is in the negative, this question is relevant 
as far as, in the circumstances of the present case, the insolvency proceedings 
were opened during the period of normal travel. 
[25] Account being taken of the European idea of consumer protection the fact 
that, in  a case such as the present one, the consumer could possibly have had a 
claim under the insolvency protection if he or she had taken the trip or holiday, 
but not if he or she had legitimately terminated the  contract, would serve no 
purpose, 
[26] It is therefore necessary to determine the question of the interpretation of 
whether, in such a case, reimbursement in respect of the insolvency protection is 
due. 
The third question referred 
[27] If the answer to the first question is in the negative, this question is relevant 
in so far as the reason for the termination and, indirectly, the insolvency is the 
same exceptional circumstance – the Covid-19 pandemic. Flamenco became 
insolvent because of the large number of terminations of contracts due to the 
pandemic. 
BUNDESARBEITSKAMMER 
 
9 
[28] The applicant is of the view that the consumer’s right to terminate under 
Article 12 of Directive 2015/2302 would be devalued, as in the event of 
insolvency due to exceptional circumstances a traveller would have to be 
concerned that he or she would not be covered. According to the applicant, the 
more serious the exceptional circumstances, the greater the risk of the travel 
organiser’s insolvency. If the insolvency has its origin in the same exceptional 
circumstance as that of termination of the contract, it would, according to the 
applicant, be wiser, from the consumer’s point of view, not to exercise the right of 
termination and to await the occurrence of insolvency. 
[29] It is therefore necessary to clarify the question of interpretation of whether, 
at least where termination of the contact and the insolvency of the travel organiser  
have an indirect link  in that both have their origin in the same exceptional 
circumstance, the right to reimbursement is covered by the insolvency protection. 
… 
Vienna, 17 October 2022 
…