Opinion of the Advocate General — ECLI:EU:C:2023:698
Date: 2023-09-21
Language of the case: German
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

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Translation C-584/22 – 1 
Case C-584/22 
Request for a preliminary ruling 
Date lodged: 
5 September 2022 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
2 August 2022 
Applicant and appellant on a point of law: 
QM 
Defendant and respondent in the appeal on a point of law: 
Kiwi Tours GmbH 
  
BUNDESGERICHTSHOF (FEDERAL COURT OF JUSTICE, GERMANY) 
ORDER 
[…] 
in the case of 
QM, […] Mering, 
applicant and appellant on a point of law, 
[…] 
v 
Kiwi Tours GmbH, […] 
EN 
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[…] Munich, 
defendant and respondent in the appeal on a point of law 
[…] 
Further to the hearing held on 28 June 2022 […], the Tenth Civil Chamber of the 
Federal Court of Justice 
ordered as follows: 
The proceedings are stayed. 
The following question on the interpretation 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 (OJ 2015 L 326, 
p. 1 et seq.; ‘the Directive’) is referred to the Court of Justice of the 
European Union pursuant to Article 267 TFEU: 
Is Article 12(2) of the Directive to be interpreted 
1. as meaning that the assessment of the justification of the 
termination must be based solely on such unavoidable and 
extraordinary circumstances as have already occurred at the time 
of termination, 
2. or as meaning that it is also necessary to take into account 
unavoidable and extraordinary circumstances that actually occur 
after the termination but before the planned start of the journey? 
Grounds: 
1 The question referred is relevant to the decision to be given in a dispute 
concerning a claim for reimbursement of a deposit for a package holiday. 
2 I. In January 2020, the applicant booked a trip to Japan with the defendant 
for himself and his wife, which was to take place from 3 to 12 April 2020 and was 
to cost EUR 6 148.00. On 31 January 2020, he paid a deposit of EUR 1 230.00. 
3 In the wake of reports on the coronavirus, protective masks were sold out across 
Japan at the end of February 2020. Large amusement parks were closed and major 
sporting events took place without an audience or did not take place at all. On 
26 February 2020, the Japanese Government decided to cancel all sporting, 
cultural and other major events for the coming weeks. On 27 February 2020, all 
schools in Japan were closed until the beginning of April 2020 at the earliest. 
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4 By letter of 1 March 2020, the applicant terminated the package on account of the 
health risk posed by the coronavirus. The defendant then issued a cancellation 
invoice for a further EUR 307.00, which the applicant paid. 
5 On 26 March 2020, Japan imposed an entry ban. The applicant thereupon 
requested reimbursement of the sums paid. The defendant did not comply with 
that request. 
6 The Amtsgericht (Local Court) ordered the defendant to reimburse the deposit 
paid by the applicant and the cancellation costs. The court which ruled on the 
appeal on the merits (‘the appellate court’) dismissed the action with the exception 
of a certain difference. By his appeal on a point of law, for which the appellate 
court granted leave, the applicant continues to pursue his claim in its entirety. 
7 II. The appellate court considered that the applicant could not have terminated 
the booked package in accordance with Paragraph 651h(3) of the Bürgerliches 
Gesetzbuch (German Civil Code; ‘the BGB’) without being obliged to pay 
compensation. 
8 According to that court, the assessment of the question as to whether unavoidable 
and extraordinary circumstances existed depended on an ex-ante evaluation as at 
the time of termination. This was in line with the wording of Article 12(2) of the 
Directive and a view widely held in the legal literature, which rightly stated that 
the application of the norm became arbitrary in a dynamic situation in which the 
risk situation deteriorated but also improved. Moreover, the risk of deterioration 
would otherwise lie exclusively with the organiser. 
9 The appellate court further stated that it could not be assumed that unavoidable 
and extraordinary circumstances existed at the time of termination. The measures 
imposed by the Japanese authorities served the purpose of preventing infections 
on a precautionary basis. It would not have been possible to conclude solely on 
the basis of precautionary measures that the infection situation would deteriorate 
considerably by 3 April 2020, because it could not be automatically assumed that 
those measures would be ineffective. The package was not affected by those 
measures. 
10 III. The decision on the appeal on a point of law depends on the interpretation 
of Article 12(2) of the Directive. 
11 1. The defendant lost its claim to the price of the package in accordance with 
the second sentence of Paragraph 651h(1) of the BGB because the applicant 
effectively terminated the package travel contract in accordance with the first 
sentence of Paragraph 651h(1) of the BGB. The defendant is therefore obliged to 
repay the deposit provided. 
12 2. The action is nevertheless unfounded if the defendant can counter that 
claim with a claim for compensation under the third sentence of 
Paragraph 651h(1) of the BGB. However, such a claim for compensation does not 
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exist if the requirements of the first sentence of Paragraph 651h(3) of the BGB are 
met. 
13 a) Under the first sentence of Paragraph 651h(3) of the BGB, where the 
traveller terminates the package travel contract before the start of the package, the 
organiser may not claim compensation from him or her in the event of 
unavoidable and extraordinary 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. 
14 aa) Circumstances are unavoidable and extraordinary within the meaning of 
the second sentence of Paragraph 651h(3) of the BGB if they are beyond the 
control of the party who invokes them and the consequences of which could not 
have been avoided even if all reasonable measures had been taken. 
15 That definition was taken from Article 3(12) of the Directive. Recital 31 of the 
Directive lists, as examples of such circumstances, warfare, other serious security 
problems such as terrorism, and significant risks to human health such as the 
outbreak of a serious disease at the travel destination, or natural disasters. 
16 bb) The associated provision in Paragraph 651h(3) of the BGB serves to 
implement Article 12(2) of the Directive. 
17 According to Article 12(1) of the Directive, Member States must ensure that the 
traveller may terminate the package travel contract at any time before the start of 
the package. In the event of a termination, the organiser may demand payment of 
an appropriate and justifiable termination fee, as provided for (as ‘compensation’) 
under German law in the third sentence of Paragraph 651h(1) of the BGB and 
Paragraph 651h(2) of the BGB. 
18 Under Article 12(2) of the Directive, the traveller is to have the right to terminate 
the travel contract before the start of the package without paying any termination 
fee where the abovementioned conditions, laid down by German law in 
Paragraph 651h(3) of the BGB, are met. In such a case, the traveller is entitled to a 
full refund of any payments made for the package. 
19 b) The appellate court rightly proceeded on the assumption that the criteria of 
Paragraph 651h(3) of the BGB are met where extraordinary circumstances which 
give rise to a substantial likelihood that the package or the carriage of passengers 
to the destination will be significantly affected already exist prior to the start of 
the package. 
20 aa) The circumstance of being significantly affected within the meaning of 
Paragraph 651h(3) of the BGB obtains not only where it is established that 
performance of the package is not possible or would lead to a significant 
impairment of the health or other legally protected interests of the traveller. 
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21 Rather, as follows in particular from recital 31 of the Directive, such a disruption 
can already be found to exist where, as a result of unavoidable and exceptional 
circumstances, the performance of the package would entail significant and 
unreasonable risks in connection with such legally protected interests. 
22 The assessment of whether such risks exist requires a prognostic evaluation as at 
the time before the start of the package. 
23 bb) Under German procedural law, the assessment of whether there was an 
unreasonable risk is, in essence, a matter for the court ruling on the substance. 
24 The appraisal of the facts by that court is subject to review in an appeal on a point 
of law only with regard to whether an appropriate legal standard was applied, all 
the relevant circumstances of the specific individual case were included in the 
appraisal, rules of logic and principles derived from experience were taken into 
account and no circumstance was ascribed a manifestly unreasonable degree of 
importance. 
25 cc) If that standard is applied, the appellate court’s decision proves to be 
incorrect. 
26 (1) The fact that, according to the findings made, there were not yet any travel 
warnings issued by the Federal Foreign Office or risk warnings issued by the 
Robert Koch Institute or the World Health Organisation at the time of the 
termination on 1 March 2020 is not sufficient in itself to rule out the possibility of 
such a disruption, as was also recognised by the appellate court. 
27 (2) Contrary to the view taken by that court, however, a sufficient probability 
of a disruption cannot be ruled out solely because there had not yet been a 
significant number of infections in Japan at the time of the termination and the 
measures taken there had served primarily to prevent infections. 
28 Rather, the appellate court ought to have addressed the question as to whether the 
unusual nature and quantity of those measures constituted, already at that time, 
sufficient indications that there was a significant risk of infection and that it was 
not certain whether the measures taken would be sufficient to avert that risk. 
29 It cannot be ruled out that, had the appellate court taken that consideration into 
account, it would have concluded that, from the point of view of that time, a trip 
to Japan was already fraught with serious and grave health risks which a prudent 
traveller would not reasonably be expected to take. 
30 dd) However, the present Chamber is precluded from taking its own decision 
on the substance in that respect. 
31 As already stated, it is, in essence, for the court ruling on the substance to assess 
whether, taking into account the abovementioned aspects, it was to be expected, 
already at the time of the termination, that the performance of the package would 
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be significantly affected. The present Chamber cannot replace that assessment 
with its own appraisal. It would be required to refer the case back to the appellate 
court to clarify that issue. 
32 c) By contrast, in the event that circumstances arising only after the 
termination are also relevant for the assessment under Paragraph 651h(3) of the 
BGB, the present Chamber would be required to dismiss the appeal against the 
decision of the Local Court without any further findings of fact. 
33 aa) The question as to whether the traveller is not liable to pay compensation 
even where it is only after the termination that it becomes apparent with the 
requisite certainty that the performance of the package is significantly affected is 
answered differently in the German legal literature and the case-law of the local 
and regional courts. 
34 According to one view, only an ex-ante prognostic evaluation based on the 
knowledge available at the time of termination is to be decisive; by contrast, 
changes subsequently arising are to be regarded as irrelevant ([…] Amtsgericht 
Frankfurt am Main [Local Court, Frankfurt am Main], NJW-RR 2020, 1315 
paragraph 22 et seq.; Amtsgericht Köln [Local Court, Cologne], RRa 2021, 70, 
71; Amtsgericht München [Local Court, Munich], RRa 2021, 85 et seq.; 
Amtsgericht Duisburg [Local Court, Duisburg], RRa 2021, 72 et seq.). 
35 According to another view, the organiser is not entitled to compensation, 
irrespective of the information available at the time of termination, where the 
performance of the package is objectively significantly affected ([…] Landgericht 
Frankfurt am Main [Regional Court, Frankfurt am Main], judgment of 10 August 
2021 – 24 S 31/21, BeckRS 2021, 23370; judgment of 14 October 2021 – 24 S 
40/21, BeckRS 2021, 33155; Landgericht Düsseldorf [Regional Court, 
Düsseldorf], RRa 2022, 30; Local Court, Munich, RRa 2022, 26, paragraph 21 et 
seq.; Amtsgericht Aschaffenburg [Local Court, Aschaffenburg], judgment of 
18 January 2021 – 126 C 1267/20, BeckRS 2021, 3262 paragraph 8; Amtsgericht 
Hannover [Local Court, Hannover], judgment of 29 October 2020 – 515 C 
4994/20, BeckRS 2020, 30571 paragraph 21). 
36 bb) That question is relevant to the decision to be given in the present dispute. 
37 According to the findings of the previous instances, which are not challenged in 
this respect, performance of the package was not possible due to the entry ban 
imposed on 26 March 2020. Therefore, if that circumstance, which did not arise 
until after the termination, is to be taken into account, the appeal on the merits 
brought against the judgment of the Local Court must be dismissed without 
further investigation of the facts. 
38 3. The interpretation of Paragraph 651h(3) of the BGB depends on the 
interpretation of Article 12(2) of the Directive. 
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39 As already stated above, Paragraph 651h(3) of the BGB serves to transpose the 
requirements of Article 12(2) of the Directive. The provision must therefore be 
interpreted in such a manner that it reflects those requirements. 
40 4. The present Chamber takes the view that, under Article 12(2) of the 
Directive, circumstances occurring only after the termination must also be taken 
into account. 
41 a) The scheme of Article 12(1) and (2) of the Directive would appear to 
militate in favour of that view. 
42 aa) The traveller’s right to terminate the contract at any time, provided for in 
Article 12(1) of the Directive, has the consequence that a termination is also 
effective where, contrary to the traveller’s assessment, there are no unavoidable 
and extraordinary circumstances occurring at the time of the termination and 
significantly affecting the performance of the package. 
43 It is true that Article 12(2) of the Directive formally provides for a separate 
termination scenario. However, the provision is, in essence, relevant only to the 
legal consequences of a termination, because a termination under Article 12(1) of 
the Directive is effective even in the absence of a specific reason. The legal 
consequence provided for in Article 12(2) – loss of entitlement to payment of a 
termination fee – does not depend on the reasons on which the traveller based the 
termination, but solely on whether there are in fact circumstances significantly 
affecting the performance of the package. 
44 bb) The present Chamber takes the view that Article 12(1) and (2) of the 
Directive does not require that, at the time of termination, it is already established, 
down to the last detail, which claims the contracting parties will be entitled to 
following termination. 
45 In accordance with the fourth sentence of Article 12(1) of the Directive, the 
amount of the termination fee may be calculated on the basis of the individual 
circumstances of the case. The circumstances which are relevant in that regard are 
typically not yet known at the time of termination. The costs that can be saved and 
the extent to which travel services can be deployed in an alternative manner often 
depends on circumstances that occur or come to light only after termination. At 
least in such situations, it is not possible for the termination fee to be definitively 
calculated at the time of termination. The termination is nevertheless effective. 
46 cc) The present Chamber considers that there cannot be a different assessment 
of situations in which uncertainty remains in the period between the termination 
and the start of the package as to whether the organiser is entitled to a termination 
fee at all due to the effectiveness of the termination. 
47 Even where the organiser is in principle entitled to payment of a termination fee, 
cost savings and the alternative deployment of travel services may result in the 
traveller owing nothing. 
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48 The possibility that unavoidable and extraordinary circumstances significantly 
affecting the performance of the package occur after the termination and therefore 
exclude entitlement to payment of a termination fee from the very outset does not 
lead to a higher degree of uncertainty and therefore cannot be assessed differently. 
49 dd) By contrast, a different interpretation according to which the legal 
consequences of a termination are made dependent on the reason given for it 
would lead to a degree of legal uncertainty that would not be compatible with the 
requirements of Article 12(1) of the Directive. 
50 It is true that if a termination based on extraordinary circumstances within the 
meaning of Article 12(2) of the Directive were effective only where those 
circumstances actually existed at the time of the termination, the traveller could 
prevent the incurrence of a termination fee as provided for in Article 12(1) of the 
Directive. However, he or she would run the risk of having to pay the entire fee if 
he or she does not participate in the package even though it can be performed and 
is performed without being significantly affected. There is nothing to suggest that 
Article 12(2) of the Directive is intended to expose the traveller to such a risk. 
51 b) The present Chamber considers that the purpose of the termination fee also 
militates in favour of taking into account circumstances which occurred after 
termination. That is likely to be the case irrespective of whether the termination 
fee is to be regarded as a compensation-like payment or as a substitute for the 
price of the package. 
52 aa) In principle, when assessing damage for which compensation is payable, 
the entire development of the damage from the time of the event giving rise to the 
claim until the final decision on the claim asserted must be taken into account. 
53 This militates in favour of presuming an absence of damage in cases where it 
becomes apparent after termination that the performance of the package is 
significantly affected and the organiser would therefore have been obliged to 
repay the price of the package in full even if the traveller had not terminated. 
54 bb) In the event that the termination fee is to be regarded as a substitute for the 
price of the package, subsequent developments leading to loss of entitlement to 
the price of the package must likewise not be disregarded. 
55 It follows from the qualification as a payment which takes the place of the price of 
the package originally owed that, in principle, entitlement to the substitute 
payment exists only in so far as entitlement to payment of the price of the package 
would have existed even if the traveller had not terminated. That principle is 
expressed in, for example, Article 12(3) of the Directive, under which, also in the 
case of termination by the organiser, the latter must provide the traveller with a 
full refund of any payments made. 
56 c) The aspect of consumer protection is also likely to militate in favour of 
taking into account subsequent developments. 
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57 aa) In accordance with recitals 3 and 6 of the Directive, the latter serves to 
ensure a high level of consumer protection. 
58 That objective is not safeguarded solely by virtue of the organiser bearing in full 
the risk relating to payments in cases where the performance of the package is 
already significantly affected at the time of termination. The present Chamber 
takes the view that a high level of protection requires rather that, even where the 
travel contract is terminated at an early stage, the traveller does not have to make 
any payments for a package whose performance subsequently proves to be 
significantly affected. Otherwise, in uncertain situations, travellers could be 
discouraged from exercising their right of termination at an early stage. 
59 bb) Contrary to a view widely held in the German legal literature […], the 
possibility of a risk-free early termination would not lead to the traveller 
speculating on the continuation of an emerging crisis and passing on the risk of a 
significant disruption to the organiser. 
60 (1) However, the traveller can usually reduce the risk of a termination fee by 
terminating early. 
61 Typically, the more time remaining until the start of the package the greater the 
possibility to save costs or to deploy travel services in an alternative manner. 
Moreover, under [the third sentence of Article 12(1)] of the Directive and the 
provision in point 1 of Paragraph 651h(2) of the BGB, which is identical thereto 
in terms of content, a contractual standardised fee is to be determined on the basis 
of, inter alia, the period between the declaration of termination and the start of the 
package. Early termination therefore allows for the prospect that the termination 
fee to be paid will in fact be low. 
62 This reduces the risk not only for the traveller, however, but also for the organiser. 
The latter gains clarity at an early stage and has more time to save costs or to 
deploy travel services in an alternative manner. 
63 By contrast, the risk of not being able to claim a termination fee if the 
performance of the package is significantly affected exists from the outset. It is 
not increased by an early termination. 
64 (2) In that starting position, there would indeed be an incentive to engage in 
speculative behaviour if the obligation to pay a termination fee depended not only 
on whether the package can be performed, but also on the time of the termination. 
65 In that case, a traveller who has decided to terminate on the basis of extraordinary 
circumstances might feel compelled to wait until further information becomes 
available or the organiser terminates the package on its own initiative. 
It is true that the traveller would then run the risk of having to pay a larger 
termination fee if he or she ultimately does decide to terminate and the 
requirements of Paragraph 651h(3) of the BGB are not met. However, he or she 
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would still have the prospect of being released from the obligation to pay in the 
event that his or her fears materialise. 
66 Contrariwise, the organiser might feel compelled to refrain from cancelling the 
package until shortly before it starts in order to induce as many travellers as 
possible to terminate it in a way that is financially more favourable for the 
organiser. 
67 d) The present Chamber takes the view that the organiser’s duty to fulfil its 
obligation to refund the price of the package not later than 14 days after 
termination, as laid down in [the second sentence of Article 12(4)] of the Directive 
and Paragraph 651h(5) of the BGB, does not lead to a different assessment. 
68 It is true that the amount which the organiser is required to pay within that period 
also depends on the amount of the termination fee to which it is entitled, because, 
under German law, it can also deduct the latter amount from the amount of the 
refund, as expressly provided for in [the first sentence] of Article 12(4) of the 
Directive. However, it cannot be inferred from this that the amount of the 
termination fee must already have been definitively clarified at that point in time 
and that subsequent claims for additional payment or repayment are excluded. 
69 e) The present Chamber considers that the fact that Paragraph 651h(3) of the 
BGB constitutes an exception likewise does not lead to a different assessment. 
70 However, according to the general principles governing the interpretation of EU 
law, derogations from or exceptions to a general rule are in principle to be 
interpreted strictly (see, inter alia, CJEU, judgment of 6 September 2012 – 
C-190/11, NJW 2012, 3225, paragraph 27 – Mühlleitner). That applies, in 
particular, to provisions which constitute a derogation from a principle or, more 
specifically, from rules of EU law for the protection of consumers (CJEU, 
judgment of 22 December 2008 – C-549/07, NJW 2009, 347, paragraph 17 – 
Wallentin-Herman; judgment of 10 March 2005 – C-336/03, NJW 2005, 3055, 
paragraph 21 – easyCar UK Ltd). 
71 However, the provisions in Article 12(1) and (2) of the Directive are not in such a 
rule/exception relationship. Rather, they serve to strike an appropriate balance 
between the organiser’s legitimate interest in remuneration and the objective of 
ensuring a high level of consumer protection. A strict interpretation of 
Article 12(2) of the Directive would lead to additional risks being imposed on the 
consumer. For the reasons set out above, this would run counter to the statutory 
objective of ensuring a high level of consumer protection. 
72 IV. The question of interpretation, which, on the basis of the foregoing, is 
relevant, is not sufficiently clear to render unnecessary a request for a preliminary 
ruling from the Court of Justice. 
73 However, the fact that the question is assessed differently in the case-law of the 
German local and regional courts and that some of those courts have already 
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referred similar questions to the Court of Justice does not in itself give rise to any 
relevant doubts as to the correctness of the understanding set out above. 
74 However, the present Chamber cannot in any event rule out the possibility of a 
different assessment of the question by the Court of Justice just because the 
Austrian Oberster Gerichtshof (Supreme Court) has already referred it for a 
preliminary ruling (together with a further question not of relevance in the present 
case; order of 25 January 2022 – 8 Ob 130/21, Court case number C-193/22), 
thereby expressing its view that the legal situation is not sufficiently clear. 
75 V. The decision of the Austrian Supreme Court guided the present Chamber 
in its formulation of the question referred. 
[…] 
[…] 
Previous instances: 
Amtsgericht München (Local Court, Munich), decision of 8 December 2020 – 243 
C 10984/20 – 
Landgericht München I (Regional Court, Munich I), decision of 22 June 2021 – 
13 S 669/21 –