Judgment;Summary — ECLI:EU:C:2025:893
Date: 2025-11-13
Language of the case: Dutch
Court formation: Tenth Chamber
Procedure: Reference for a preliminary ruling
Origin: Belgium

Translation C-445/24 – 1 
Case C-445/24 
Request for a preliminary ruling 
Date of submission: 
24 June 2024 
Referring court: 
Hof van Cassatie (Belgium) 
Date of the decision to refer: 
3 June 2024 
Appellant in cassation/Respondent at first instance: 
MS Amlin Insurance SE 
Respondent in cassation/Applicant at first instance: 
(W)onderweg VZW 
  
Cour de cassation (Court of Cassation, Belgium) 
Judgment 
[…] 
MS AMLIN INSURANCE se, with registered office at […] Schaarbeek, […] 
appellant, 
[…] 
against 
(W)ONDERWEG vzw, with registered office at […] Wilrijk, […], 
respondent, 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 6. 2024 – CASE C-445/24 
 
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I. PROCEDURE BEFORE THE HOF VAN CASSATIE 
The appeal in cassation is directed against the judgment of the hof van beroep te 
Antwerpen (Antwerp Court of Appeal) of 19 December 2022. 
[…]. 
II. FACTS OF THE CASE AND PROCEDURE 
The court record reveals the following factual data and procedural predicates: 
- on 18 January 2020, the respondent concluded a travel contract for its 
members with the travel agency S. for travel to a city (with train tickets and 
hotel) to Lyon for the period from 21 to 24 April 2020, for which it paid the 
sum of EUR 9 165.14; 
- on 16 March 2020, after the coronavirus lockdown had come into effect, the 
respondent asked the travel agency whether the travel to a city could be 
rescheduled, with the same hotel and at the same price, for September 2020; 
- in response, the travel agency stated that the travel had to be rescheduled as 
the hotel was closed until 17 May 2020 and was not available during the 
week of 21 September 2020; 
- the respondent then enquired whether the travel could be postponed by a 
year to 20-23 April 2021, to which the travel agency replied that the hotel 
was still available during that period; 
- in that discussion with the travel agency, compensation in the form of a 
voucher was also raised, with the travel agency confirming that vouchers are 
valid for one year, that refunds could only be requested after that time, but 
that it would nevertheless seek reimbursement first; 
- on 7 September 2020, the respondent served the travel agency with a notice 
of default, seeking repayment of the cost of the travel; 
- on 22 September 2020, the travel agency was declared bankrupt, whereupon 
the respondent turned to the appellant, the insolvency insurer of the travel 
agency, which rejected the claim; 
- by writ of summons dated 5 February 2021, the respondent applied to the 
rechtbank van eerste aanleg Antwerpen, afdeling Antwerpen (Antwerp 
Court of First Instance, Antwerp Division) for recovery of the cost of the 
travel on account of non-performance of the travel contract; 
- the Court of First Instance dismissed this claim on the basis that the travel 
was cancelled before the tour operator became insolvent; 
(W)ONDERWEG 
 
3 
- hearing the appeal of the respondent, the Antwerp Court of Appeal, by the 
contested judgment of 19 December 2022, upheld the appeal and ordered the 
appellant to pay the sum of EUR 9 165.14 plus interest and costs. 
III. GROUND OF APPEAL 
The appellant put forward the following ground of appeal in its application: 
Legal provisions infringed 
- Articles 2, 6° and 4, 2° of the Law of 21 November 2017 on the sale of 
package travel, linked travel arrangements and travel services (‘the Law on 
Package Travel’); 
- Article 2, 3° of the Royal Decree of 29 May 2018 on protection against 
insolvency in the sale of package travel; 
- Article 1138, 2° of the Gerechtelijk Wetboek (Belgian Judicial Code); 
- the general principle of law concerning the role of the court; 
- the general principle of law concerning the right of defence; 
- the general principle of law governing the autonomy of litigants in civil 
proceedings. 
Contested decisions 
The appellate court decides that the appellant is liable to reimburse the cost of the 
travel paid by the respondent, as the respondent can be considered a traveller 
within the meaning of the Law on Package Travel: 
‘The first court correctly held that [the respondent] must be considered a traveller 
within the meaning of the Law on Package Travel of 21 November 2017. The 
Court makes the considerations of the first court on the matter its own. Under the 
provisions of that law, the traveller is not necessarily a natural person who is a 
consumer but a legal entity or company may also be considered a traveller. 
There is no dispute between the parties that [the respondent] ordered a package 
holiday for its members from and paid for it to the insured of [the appellant]. 
There can therefore be no dispute that [the respondent] is the co-contractor of the 
insured of [the appellant] and is to be considered a traveller within the meaning 
of the aforementioned law and the contracts underlying this dispute. 
(…) 
Under the terms and conditions of the contract concluded between [the appellant] 
and its insured, [the respondent] is indeed entitled to the insurance benefit. 
REQUEST FOR A PRELIMINARY RULING OF 3. 6. 2024 – CASE C-445/24 
 
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In terms of figures, the claim of [the respondent] is not disputed by [the 
appellant]. The appeal is well founded to the foregoing extent.’ 
(Contested judgment, pp. 3-5) 
Complaints 
First part 
According to Article 2, 6° of the Law on Package Travel, ‘traveller’ means any 
person who is seeking to conclude a contract, or is entitled to travel on the basis 
of a contract concluded, within the scope of that law. 
Under Article 2, 3° of the Royal Decree of 29 May 2018 on protection against 
insolvency in the sale of package travel, the beneficiary of insolvency insurance is 
any traveller within the meaning of the Law on Package Travel. 
A traveller can only be considered to be the person who benefits from the travel 
commitment, regardless of whether or not this traveller is a consumer. 
In the parliamentary preparation of the Law on Package Travel, one reads 
expressly in connection with the definition of the concept of traveller in Article 2, 
6° of the Law on Package Travel that ‘travellers who buy package travel or linked 
travel arrangements are [often] consumers: natural persons acting for purposes 
outside their trade, business, craft or profession. However, the concept of 
traveller is broader and includes non-consumers: companies, professionals, 
including members of the liberal professions, self-employed persons or other 
natural persons, who book commercial or business travel through the same 
booking channels.’ 
In that context, reference can also be made to Article 4, 2° of the Law on Package 
Travel: travel offered or facilitated to a limited group of travellers exclusively on 
an occasional and not-for-profit basis are excluded from the scope. 
Consequently, a non-profit association offering travel to its members cannot be 
considered a traveller within the meaning of Article 2, 6° of the Law on Package 
Travel and Article 2, 3° of the Royal Decree of 29 May 2018 on protection against 
insolvency in the sale of package travel[.] 
The appellant argued in conclusion that the respondent did not have the requisite 
interest and capacity to bring the claim for reimbursement. The respondent is not 
a traveller within the meaning of the Law on Package Travel. Among other things, 
the order form, on which the individual names of the members are listed, shows 
that not it, but the members are the actual and effective travellers. Only the 
individual members are the travellers and therefore the beneficiaries of the 
contract, which means that the respondent has no rights of action against the 
appellant. 
(W)ONDERWEG 
 
5 
The appellate court states that: 
- a traveller is not necessarily a natural person who is a consumer, but can 
also be a legal entity or company, 
- the respondent ordered the package holiday for its members from and paid 
for it to the insured of the appellant, 
- the respondent is the co-contractor of the insured of the appellant. 
Based on the above determinations, the appellate court concludes that the 
respondent must be considered a traveller within the meaning of the Law on 
Package Travel and is therefore the beneficiary of the insolvency insurance in 
accordance with Article 2, 3° of the Royal Decree of 29 May 2018 on protection 
against insolvency in the sale of package travel, and as such the respondent has 
rights of action against the appellant. 
From the finding of the appellate court that the respondent ordered and paid for 
the package tour on behalf of its members, it appears that it is not the respondent, 
but its members, who enjoy the benefit of the travel commitment. 
The appellate court deciding that the respondent must be considered a traveller 
within the meaning of the Law on Package Travel based on the finding that the 
respondent is the co-contractor of the insured of the appellant, while finding that 
the respondent ordered and paid for the package holiday on behalf of its 
members, does not justify its decision that the appellant is liable to reimburse the 
cost of the travel paid to the respondent as a traveller and, consequently, 
beneficiary of the insolvency insurance, and violates Article 2, 6° of the Law on 
Package Travel, as well as Article 2, 3° of the Royal Decree of 29 May 2018 on 
protection against insolvency in the sale of package travel. 
Second part 
Pursuant to Article 4, 2° of the Law on Package Travel, the Law on Package 
Travel does not apply to package travel that is offered, and linked travel 
arrangements that are facilitated, on an occasional, not-for-profit basis and 
exclusively to a limited group of travellers. 
According to Article 2, 6° of the Law on Package Travel, ‘traveller’ means any 
person who is seeking to conclude a contract, or is entitled to travel on the basis 
of a contract concluded, within the scope of that law. 
Accordingly, a party can only be considered a traveller within the meaning of the 
Law on Package Travel if that party falls within the scope of the law. 
In accordance with the general principle of law concerning the role of the court, 
the court is bound to settle the dispute in accordance with the rules of law 
applicable to it. It must examine the legal nature of the facts and acts relied upon 
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by the parties and, irrespective of the legal description given to them by the 
parties, it may add to the reasons put forward by them of its own motion, provided 
that it does not raise a dispute, the existence of which the parties have ruled out 
by way of conclusion, that it relies only on elements that have been properly 
submitted to it, that it does not alter the subject matter of the claim and that, in 
doing so, it does not disregard the rights of defence of the parties. 
It has the duty to raise of its own motion the remedies whose application is 
required by the facts specifically pleaded by the parties in support of their claims. 
That does not imply that the court is required to examine the applicability of all 
grounds of law that are possible in the light of the established facts of the dispute 
but which have not been relied upon, but only that, subject to respect for the rights 
of the defence, it must examine the applicability of those grounds of law that have 
not been relied upon, but which are unmistakably imposed on it by the facts as 
they are specifically pleaded. 
The appellant argued in conclusion that the respondent did not have the requisite 
interest and capacity to bring the claim for reimbursement. The respondent is not 
a traveller within the meaning of the Law on Package Travel. Among other things, 
the order form, on which the individual names of the members are listed, shows 
that not it, but the members are the actual and effective travellers. Only the 
individual members are the travellers and therefore the beneficiaries of the 
contract, which means that the respondent has no rights of action against the 
appellant. 
Consequently, it appears from the documents that your Court may take into 
account that the dispute between the parties concerned whether the respondent 
could be considered a ‘traveller’ within the meaning of the Law on Package 
Travel. The appellate court therefore had to raise of its own motion the fact that 
the Law on Package Travel does not apply to the present dispute by application of 
Article 4, 2° of that law. 
By deciding that the appellant is liable to reimburse the cost of the travel to the 
respondent, whereas the appellate court was bound to establish that the contract 
concluded between the respondent and the insured of the appellant falls outside 
the scope of the Law on Package Travel and, therefore, the respondent cannot be 
a beneficiary of the insolvency insurance within the meaning of Article 2, 3° of the 
Royal Decree of 29 May 2018 on protection against insolvency in the sale of 
package travel, the appellate court infringed Articles 2, 6° and 4, 2° of the Law on 
Package Travel, read in conjunction with Article 2, 3° of the Royal Decree of 
29 May 2018 on protection against insolvency in the sale of package travel, as 
well as the general principle of law concerning the role of the court[.] 
Third part 
The court is bound to settle the dispute in accordance with the rules of law 
applicable to it. It must examine the legal nature of the facts and acts relied upon 
(W)ONDERWEG 
 
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by the parties and, irrespective of the legal description given to them by the 
parties, it may add to the reasons put forward by them of its own motion, provided 
that it does not raise a dispute, the existence of which the parties have ruled out 
by way of conclusion, that it relies only on elements that have been properly 
submitted to it, that it does not alter the subject matter of the claim and that, in 
doing so, it does not disregard the rights of defence of the parties. 
The appellate court rules that the respondent must be considered a traveller 
within the meaning of the Law on Package Travel and the contracts underlying 
this dispute. 
The respondent did not argue in conclusion that the contracts offered insurance 
cover that was broader than the protection provided for by the Law on Package 
Travel and the Royal Decree of 29 May 2018 on protection against insolvency in 
the sale of package travel. 
In so far as the decision of the appellate court that the respondent must be 
regarded as a traveller within the meaning of the contracts underlying this dispute 
is to be read as meaning that the insurance contract concluded between the 
appellant and [S. nv] or any contract entered into by the respondent provides 
broader protection for the respondent than that provided for in the Law on 
Package Travel and the Royal Decree of 29 May 2018 on protection against 
insolvency in respect of the sale of package travel, the appellate court introduces 
an element into the debate that the parties had no reason to expect given the 
course of the debate and disregards the general legal principle of the role of the 
court, the general legal principle concerning the right to a defence, as well as the 
general legal principle concerning the autonomy of the parties to the proceedings 
and infringes Article 1138, 2° of the Belgian Judicial Code. 
IV. DECISION OF THE HOF VAN CASSATIE 
Assessment 
Third part 
1 The appellate court finds that the respondent must be considered a traveller within 
the meaning of the Law of 21 November 2017 on the sale of package travel, 
linked travel arrangements and travel services, (‘the Law on Package Travel’). It 
does not find that the contracts underlying this dispute between the respondent and 
the insured of the appellant provide for broader protection for the respondent than 
the protection provided for in the Law on Package Travel and the Royal Decree of 
29 May 2018 on protection against insolvency in the sale of package travel, linked 
travel arrangements and travel services (‘the Royal Decree of 29 May 2018’). 
That part [of the ground of appeal] is based on an incorrect reading of the 
judgment and therefore lacks a factual basis. 
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Second part 
2 According to Article 2, 6° of the Law on Package Travel, ‘traveller’ means any 
person who is seeking to conclude a contract, or is entitled to travel on the basis of 
a contract concluded, within the scope of the law. 
Pursuant to Article 4, 2° of the Law on Package Travel, the law does not apply to 
package travel that are offered, and linked travel arrangements that are facilitated, 
on an occasional, not-for-profit basis and exclusively to a limited group of 
travellers. 
3 The legislative history shows that the exception mentioned in Article 4, 2° of that 
law should be interpreted restrictively and only concerns package travel, 
organised by non-professional organisations, which only offer holidays 
occasionally and for a limited group of travellers. 
The part assuming that that provision also applies to package travel organised by a 
professional travel agent is based on an error of law and consequently fails as a 
matter of law. 
First part 
4 According to Article 2, 6° of the Law on Package Travel, ‘traveller’ means any 
person who is seeking to conclude a contract, or is entitled to travel on the basis of 
a contract concluded, within the scope of the law. 
Under Article 4 of the Law on Package Travel, the law does not apply to: 
1° packages and linked travel arrangements covering a period of less than 
24 hours unless overnight accommodation is included; 
2° packages offered, and linked travel arrangements facilitated, occasionally and 
on a not-for-profit basis and only to a limited group of travellers; 
3° package travel, linked travel arrangements and separately sold travel services 
purchased on the basis of a general agreement for the arrangement of business 
travel between a professional and another natural or legal person who is acting for 
purposes relating to his trade, business, craft or profession. 
Under Article 2, 3° of the Royal Decree of 29 May 2018, the beneficiary of 
insolvency insurance is any traveller within the meaning of Article 2, 6° of the 
Law on Package Travel. 
5 The concept of ‘traveller’ should be interpreted in accordance with Directive (EU) 
2015/2302 of the European Parliament and of the Council of 25 November 2015 
on package travel and linked travel arrangements, amending Regulation (EC) 
No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the 
(W)ONDERWEG 
 
9 
Council, and repealing Council Directive 90/314/EEC (‘the Package Travel 
Directive’). 
6 Article 3.6) of the Package Travel Directive defines ‘traveller’ as any person who 
is seeking to conclude a contract, or is entitled to travel on the basis of a contract 
concluded, within the scope of this Directive; 
Pursuant to Article 2.1 of the Package Travel Directive, the directive applies to 
packages offered for sale or sold by traders to travellers and to linked travel 
arrangements facilitated by traders for travellers. 
Under Article 2.2, it does not apply to: 
(a) packages and linked travel arrangements covering a period of less than 
24 hours unless overnight accommodation is included; 
(b) packages offered, and linked travel arrangements facilitated, occasionally 
and on a not-for-profit basis and only to a limited group of travellers; 
(c) packages and linked travel arrangements purchased on the basis of a general 
agreement for the arrangement of business travel between a trader and another 
natural or legal person who is acting for purposes relating to his trade, business, 
craft or profession. 
7 Before the appellate court, the appellant argued that the Law on Package Travel 
did not apply and the respondent did not qualify as a traveller within the meaning 
of the Law on Package Travel who could invoke the intervention of the 
insolvency insurer as this term ‘traveller’ refers only to the traveller as a natural 
person, i.e. the members of the respondent for whom the respondent purchased the 
travel, and not the respondent itself, which is a legal person. 
8 Adopting the reasons of the first court, the appellate court finds that the 
respondent, which, as a non-profit association in the course of its operation, 
booked travel for the persons for whom it works, can be considered a ‘traveller’ 
within the meaning of the Law on Package Travel because, under the provisions 
of the law, a traveller is not necessarily a natural person who is a consumer, but 
can also be a legal entity or company. 
9 The question arises as to whether a legal entity, such as a non-profit association 
that occasionally purchases package travel from a trader for its members, can be 
considered a traveller within the meaning of Article 3.6) of the Package Travel 
Directive. 
10 The Court considers that it appears necessary, before giving a ruling, to submit to 
the Court of Justice of the European Union for a preliminary ruling, in accordance 
with Article 267 TFEU, the question formulated in the operative part of this 
judgment. 
REQUEST FOR A PRELIMINARY RULING OF 3. 6. 2024 – CASE C-445/24 
 
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Operative part of the judgment 
The Hof, 
The Hof [van Cassatie] Defers all further decisions until the Court of Justice of the 
European Union has given a preliminary ruling on the following question: 
‘Is the concept of a “traveller” in Article 3(6) of Directive (EU) 2015/2302 of the 
European Parliament and of the Council of 25 November 2015 on package travel 
and linked travel arrangements, 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 be interpreted as meaning that it also 
includes a legal person, such as a non-profit association which occasionally buys 
package travel from a trader for its members?’ 
[…] [Closing formula]