Request for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 5 May 2021 – FC v FTI Touristik GmbH
(Case C-287/21)
Language of the case: German
Referring court
Landesgericht Salzburg
Parties to the main proceedings
Applicant: FC
Defendant: FTI Touristik GmbH
Questions referred
Must Article 12(2) of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements 1 (‘the Directive’) be interpreted as meaning that termination of the package by the traveller on the basis of ‘unavoidable and extraordinary circumstances’ is in principle permitted only immediately prior to the start of the trip or may that termination occur, in an individual case, also three to four months in advance?
Should a declaration of termination in principle be permitted without any limitation in time, the following questions are also asked:
(a) is it sufficient, for the prospective analysis to be made from the perspective of a traveller with regard to the planned travel period as part of an ex ante assessment, that the abovementioned circumstances and the adverse effect resulting therefrom can already be predicted with a reasonable degree of probability and, in the case of a risk situation that has already occurred, that a significant improvement cannot be expected with a high degree of probability; and
(b) does a termination which may have been declared prematurely not come at the expense of the traveller if circumstances already existing at the time of the declaration of termination reveal only immediately prior to the planned start of the trip that the trip cannot ultimately be carried out by the organiser or it would have been unreasonable for the traveller to participate in it?
When assessing the existence of unavoidable and extraordinary circumstances at the place of destination or in its immediate vicinity and the significant effect on the performance of the package resulting therefrom, does it depend:
(a) solely on objective circumstances, or are subjective circumstances on the part of the traveller also to be taken into account, in the present case, for example, the special purpose of the trip and the bringing along of two small children; and
(b) in assessing the probable risk situation during the travel period, besides the outbound and return journey, is the destination Sardinia and not the rest of Italy of primary importance?
Is a right of termination free of charge not available if the circumstances on which the traveller relies already existed at the time of booking or were at least foreseeable, or can this at least lead to the application of a stricter standard in assessing the reasonableness of an adverse effect?
Should the preconditions for termination free of charge not be met, must agreed ‘reasonable standardised termination fees’ within the meaning of Article 12(1) of the Directive solely be within the limits of the percentages customary in the sector, based on empirical rates, or is it always necessary to examine the expected cost savings and income from alternative deployment of the travel services in the specific individual case, disclosing the calculation bases used by the organiser?
When assessing the reasonableness of termination fees agreed at a flat rate, may recourse be had to national law if that law allows the amount to be fixed at the discretion of a court in the event of an anticipated disproportionate procedural burden?
Does the last sentence of Article 12(1) of the Directive, according to which, at the traveller’s request, the organiser is to provide a justification for the amount of the termination fees, also apply to a termination fee agreed at a flat percentage rate, and what are the legal consequences of the organiser’s failure to fulfil, or failure sufficiently to fulfil, that obligation?
Does the organiser bear the burden of assertion and proof in respect of the appropriateness of a termination fee agreed at a flat percentage rate or is it always incumbent on the traveller to object and to provide evidence of what the organiser usually saves depending on the time of the termination and on what it can usually gain through alternative sale of the travel services?
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1 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).