Judgment;Summary — ECLI:EU:C:2024:847
Date: 2024-10-04
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Anonymised version 
Translation C-546/22 – 1 
Case C-546/22 
Request for a preliminary ruling 
Date lodged: 
16 August 2022 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
29 June 2022 
Applicant: 
GF 
Defendant: 
Schauinsland-Reisen GmbH 
  
… 
The Oberster Gerichtshof (Supreme Court, Austria), ruling on a point of law … in 
the case opposing the applicant, GF, … and the defendant, Schauinsland-Reisen 
GmbH, D-47051 Duisburg, … concerning EUR 21 821.82 … in the appeal on a 
point of law brought by the applicant against the judgment of the 
Oberlandesgericht Graz (Higher Regional Court, Graz, Austria), ruling on appeal 
on 27 January 2022, … by which it upheld the judgment of the Landesgericht für 
Zivilrechtssachen Graz (Regional Civil Court, Graz, Austria) of 13 July 2021 …, 
gives the following 
O r d e r 
 
A. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 29. 6. 2022 – CASE C-546/22 
 
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1. Is Article 12(3) 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 (package travel directive) to be interpreted as meaning that, 
for an organiser to rely on unavoidable and extraordinary circumstances 
preventing performance of a contract, it is sufficient that the authority authorised 
in the customer’s Member State to issue travel warnings has issued the highest-
level warning for the destination country before the start of the proposed journey? 
2. If the answer to Question 1 is in the affirmative: 
Is Article 12(3) of Directive (EU) 2015/2302 to be interpreted as meaning that 
there are no unavoidable and extraordinary circumstances in a case where the 
traveller, who is aware of the travel warning and the uncertainty as to the 
subsequent development of the pandemic, has nevertheless stated that he wishes to 
proceed with the journey and that it would not have been impossible for the 
organiser to carry it out? 
B. … [Stay of proceedings] 
G r o u n d s: 
1. On 13 May 2020, the applicant, a medical consultant in private practice, and 
his wife booked a package trip to the Maldives organised by the defendant for the 
period from 26 December 2020 to 2 January 2021 for a total price of EUR 8 620. 
Owing to the COVID-19 pandemic, the Maldives received, at the latest from 
December 2020, a travel warning from the Austrian Ministry of Foreign Affairs at 
the highest level 6 (‘warning against all tourist and non-essential travel to this 
country, including holidays and travel for the purpose of visiting family’). At that 
time, the seven-day incidence rate in the Maldives, at 34.7, was lower than in 
Austria, at 220. 
On 3 December 2020, as a result of the travel warning, the defendant cancelled the 
booked trip. The applicant was informed of the reasons no later than 9 December 
2020 and the deposit paid by him was refunded. The alternative travel offers made 
by the defendant did not meet the expectations of the applicant and his wife. 
2. Forms of order sought and arguments of the parties 
The applicant claims damages on his own behalf and on behalf of his wife for loss 
of holiday enjoyment and a fixed amount of costs. In addition, he seeks 
reimbursement of loss of earnings on the ground that he closed his practice 
because of the holiday booked from 23 December 2020 to 5 January 2021. He 
claims that it was no longer possible to reverse the closure at short notice after the 
cancellation. In his view, the Ministry’s travel warning was not an unavoidable 
and extraordinary circumstance that would have prevented the defendant from 
SCHAUINSLAND-REISEN 
 
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fulfilling the travel contract, especially since the seven-day incidence would have 
been more favourable in the Maldives, there was also sufficient medical care there 
and, moreover, the applicant and his wife had taken out travel health insurance. 
The defendant contended that it could not reasonably have been expected to carry 
out the trip. It would have had to accept incalculable liability consequences if it 
had disregarded the travel warning issued by the Ministry of Foreign Affairs. It 
claims that, owing to the exit restrictions applicable in Austria from 26 December 
2020, the applicant would not even have been allowed to start the journey. He did 
not suffer any loss of earnings as a result of the cancellation. 
3. Earlier proceedings 
The court of first instance dismissed the claim. The defendant relied on justified 
unavoidable and extraordinary circumstances for its termination. For that reason 
alone, no damages were due. 
The court of appeal did not uphold the appeal brought by the applicant. Even if the 
travel warning were only regarded as an indication of extraordinary obstacles, the 
defendant was in any event not at fault in view of the uncertainty as to the 
development of the pandemic prevailing at the time of the cancellation. 
The Supreme Court is called upon to decide the appeal on a point of law brought 
by the applicant. The defendant also takes the view in the appeal on a point of law 
proceedings that it was entitled to terminate the travel contract without any further 
obligation to pay compensation owing to unavoidable and unforeseeable 
circumstances in the form of the travel warning. 
4. Legal basis 
4.1. European Union law 
Article 12(3) 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 (package travel directive), is worded, in part, as follows: 
‘The organiser may terminate the package travel contract and provide the traveller 
with a full refund of any payments made for the package, but shall not be liable 
for additional compensation, if: 
(a) the number of persons enrolled for the package is smaller than the minimum 
number stated in the contract and the organiser notifies the traveller of the 
termination of the contract within the period fixed in the contract, … 
or 
REQUEST FOR A PRELIMINARY RULING OF 29. 6. 2022 – CASE C-546/22 
 
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(b) the organiser is prevented from performing the contract because of 
unavoidable and extraordinary circumstances and notifies the traveller of the 
termination of the contract without undue delay before the start of the package. …’ 
According to the definition in Article 3(12) of the package travel directive, 
‘unavoidable and extraordinary circumstances’ means ‘a situation beyond the 
control of the party who invokes such a situation and the consequences of which 
could not have been avoided even if all reasonable measures had been taken’. 
4.2. Austrian law 
According to the second case envisaged by Paragraph 10(3) of the 
Pauschalreisegesetz (Law on package travel), the organiser may terminate the 
package travel contract before the start of the package in return for a full refund of 
all payments made for the package, but without having to pay any additional 
compensation, ‘where the organiser is prevented from performing the contract 
owing to unavoidable and extraordinary circumstances and his notice of 
termination is received by the traveller without undue delay, but no later than 
before the start of the package’. 
5. Questions referred for a preliminary ruling 
5.1. In the case in question, approximately three weeks before the start of the 
booked trip, a travel warning of the highest level was issued, owing to the Covid 
19 pandemic, by the Ministry of Foreign Affairs of the applicant’s country of 
residence, which was combined with a recommendation to the population to 
refrain from tourist travel to the booked destination. 
Neither the course of the Covid 19 pandemic nor the issuing of the travel warning 
were under the control of the defendant organiser. It also clearly had no possibility 
of avoiding the consequences of the pandemic in general or the travel warning in 
particular by taking appropriate precautions of his own. 
5.2. However, there is doubt as to whether the travel warning issued by a 
ministry on account of a pandemic situation constitutes, in itself, a circumstance 
which justified the defendant, as an organiser, to terminate the contract, on the 
ground that it indicates a high risk for safely carrying out the journey and that 
possible measures at the holiday location were to be expected which could have 
impeded the stay or return of travellers, or whether, as the applicant assumes, it is 
for the organiser to assess the situation itself, irrespective of the public warning, 
and to conduct a risk assessment, taking into account all the circumstances of the 
individual case. 
For the relevance of the public travel warning, it could be argued that it is issued 
by an uninvolved qualified body and is unambiguous, with the result that the need 
of the relevant public for clarity and legal certainty is met. In addition, a State 
authority, in particular a Ministry of Foreign Affairs, usually has more reliable 
means of monitoring the risk situation than an undertaking. 
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On the other hand, an argument in favour of the interpretation put forward by the 
applicant would be that the official travel warning, in view of the constantly 
changing pandemic activity and the constantly shifting affectedness of the 
different regions of the world, may no longer be completely up-to-date and may 
not reflect the actual risk situation at the time of travel. The case-law has so far 
only upheld the ground of termination for the traveller (8 Ob 99/99p) but has not 
yet taken a position on a termination by the organiser. 
5.3. The second question referred for a preliminary ruling seeks to ascertain 
whether the organiser may not rely on being ‘prevented from performing the 
contract owing to unavoidable and exceptional circumstances’, even where a 
highest-level travel warning is in place, where the performance of the trip would, 
in principle, be possible on account of the availability of the means of transport 
and accommodation booked and because the customer, aware of the travel 
warning, stated that he wished to accept the indicated risk or whether, in that case 
too, the organiser has a right of termination without any further obligation to pay 
compensation. 
6. … [Comments on the obligation to make a reference] 
… [Stay of proceedings] 
… Vienna, 29 June 2022 …