Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE COURT (Fifth Chamber)

16 February 2012 (*)

(Directive 90/314/EEC - Package travel, package holidays and package tours - Article 7 - Protection against the risk of insolvency or bankruptcy on the part of the package organiser - Scope - Insolvency of the organiser on account of its fraudulent use of the funds transferred by consumers)

In Case C-134/11,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Landgericht Hamburg (Germany), made by decision of 2 March 2011, received at the Court on 18 March 2011, in the proceedings

Jürgen Blödel-Pawlik

v

HanseMerkur Reiseversicherung AG,

THE COURT (Fifth Chamber),

composed of M. Safjan, President of the Chamber, A. Borg Barthet (Rapporteur) and J.-J. Kasel, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

- Mr Blödel-Pawlik, by M. Sauren, Rechtsanwalt,

- HanseMerkur Reiseversicherung AG, by G. Heinemann, Rechtsanwalt,

- the German Government, by T. Henze and J. Kemper, acting as Agents,

- the Belgian Government, by T. Materne and J.-C. Halleux, acting as Agents,

- the Czech Government, by M. Smolek and J. Vláčil, acting as Agents,

- the Estonian Government,, by M. Linntam, acting as Agent,

- the Greek Government, by K. Paraskevopoulou and I. Bakopoulos, acting as Agents,

- the Spanish Government, by S. Centeno Huerta, acting as Agent,

- the Italian Government, by G. Palmieri, acting as Agent, and by L. Ventrella, avvocato dello Stato,

- the Hungarian Government, by Z. Fehér Miklós and by K. Szíjjártó and Z. Tóth, acting as Agents,

- the Austrian Government, by A. Posch, acting as Agent,

- the Polish Government, by M. Szpunar, acting as Agent,

- the European Commission, by M. Owsiany-Hornung and S. Grünheid, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 7 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).

2 The reference has been made in proceedings between Mr Blödel-Pawlik and HanseMerkur Reiseversicherung AG ('HanseMerkur') concerning HanseMerkur's refusal to refund the price of package travel, which was paid for by the consumer but which the travel organiser failed to arrange.

Legal context

European Union ('EU') law

3 The seventh, eighteenth, twenty-first and twenty-second recitals in the preamble to Directive 90/314 state:

'... tourism plays an increasingly important role in the economies of the Member States; ... the package system is a fundamental part of tourism; ... the package travel industry in Member States would be stimulated to greater growth and productivity if at least a minimum of common rules were adopted in order to give it a Community dimension; ...

...

... the organiser and/or retailer party to the contract should be liable to the consumer for the proper performance of the obligations arising from the contract; ... moreover, the organiser and/or retailer should be liable for the damage resulting for the consumer from failure to perform or improper performance of the contract unless the defects in the performance of the contract are attributable neither to any fault of theirs nor to that of another supplier of services;

...

... both the consumer and the package travel industry would benefit if organisers and/or retailers were placed under an obligation to provide sufficient evidence of security in the event of insolvency;

... Member States should be at liberty to adopt, or retain, more stringent provisions relating to package travel for the purpose of protecting the consumer'.

4 Article 1 of Directive 90/314 provides:

'The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to packages sold or offered for sale in the territory of the Community.'

5 The first subparagraph of Article 4(6) of Directive 90/314 provides:

'If the consumer withdraws from the contract pursuant to paragraph 5, or if, for whatever cause, other than the fault of the consumer, the organiser cancels the package before the agreed date of departure, the consumer shall be entitled:

(a) either to take a substitute package of equivalent or higher quality where the organiser and/or retailer is able to offer him such a substitute. If the replacement package offered is of lower quality, the organiser shall refund the difference in price to the consumer;

(b) or to be repaid as soon as possible all sums paid by him under the contract.'

6 Paragraphs 1 and 2 of Article 5 of Directive 90/314 are worded as follows:

'1. Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services.

2. With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organiser and/or retailer is/are liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to that of another supplier of services ...'

7 Under Article 7 of Directive 90/314:

'The organiser and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency.'

8 Article 8 of Directive 90/314 provides:

'Member States may adopt or return more stringent provisions in the field covered by this Directive to protect the consumer.'

The German legislation

9 Under Paragraph 651k(1)(1) of the Civil Code (Bürgerliches Gesetzbuch), which transposed Article 7 of Directive 90/314 into German law:

'The travel operator must guarantee that travellers are refunded:

1. the amount paid for travel, to the extent that travel services fail to materialise owing to the travel operator's insolvency or the opening of insolvency proceedings in respect of its assets ...'

The dispute in the main proceedings and the question referred for a preliminary ruling

10 On 4 August 2009, Mr Blödel-Pawlik booked package travel for himself and his wife with Rhein Reisen GmbH ('Rhein Reisen'), a company which, as a travel organiser, had taken out insurance against insolvency - effective from 1 August 2009 - with HanseMerkur.

11 Rhein Reisen provided Mr Blödel-Pawlik with two notices of guarantee which confirmed that the cost of the trip would be refunded if the travel services failed to be provided owing to the travel organiser's insolvency.

12 Before the start of the trip, Rhein Reisen informed Mr Blödel-Pawlik that it was obliged to declare itself insolvent.

13 It is apparent from the file that Rhein Reisen, represented by a sole administrator, never really intended to organise the trip in question. Both the chronology of events and the transactions shown on the travel organiser's bank account statements reveal fraudulent conduct on the part of that operator.

14 In those circumstances, Mr Blödel-Pawlik presented HanseMerkur with a claim for reimbursement of the price which he had paid for the trip.

15 HanseMerkur argues, however, that it is not required to arrange a refund, since Article 7 of Directive 90/314 does not cover a situation where the travel has been cancelled solely because of fraudulent conduct on the part of the travel organiser.

16 The Landgericht Hamburg (Regional Court, Hamburg) is also doubtful as to whether Directive 90/314 seeks to protect consumers against fraudulent conduct on the part of travel organisers.

17 On the view that resolution of the dispute before it depends on the interpretation of Directive 90/314, the Landgericht Hamburg decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

'Does Article 7 of [Directive 90/314] also apply where the travel organiser becomes insolvent because, from the beginning with fraudulent intent, it has used all the money collected from the travellers for an improper purpose and it was never intended that the trip would be organised?'

Consideration of the question referred

18 By its question, the national court is essentially asking whether Article 7 of Directive 90/314 is to be interpreted as covering a situation in which the insolvency of the travel organiser is attributable to its own fraudulent conduct.

19 In that regard, it should be borne in mind, first of all, that Article 7 of Directive 90/314 places the travel organiser under an obligation to hold sufficient security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency, the purpose of that security being to protect consumers against the financial risks arising from the insolvency of package travel organisers (see Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94 Dillenkofer and Others [1996] ECR I-4845, paragraphs 34 and 35).

20 Thus, the fundamental objective of that provision is to ensure that the repatriation of the consumer and the refund of money paid over are guaranteed in the event of insolvency or bankruptcy on the part of a travel organiser (see, to that effect, Dillenkofer and Others, paragraphs 35 and 36).

21 It is clear that the wording of Article 7 of Directive 90/314 does not attach to the guarantee any specific condition regarding the causes of the travel organiser's insolvency.

22 In that connection, the Court has held, in paragraph 74 of its judgment in Case C-140/97 Rechberger and Others [1999] ECR I-3499, that Article 7 of Directive 90/314 imposes an obligation of result, that is to say, an obligation to guarantee package travellers the refund of money paid over and their repatriation in the event of the travel organiser's bankruptcy, and that such a guarantee is specifically aimed at arming consumers against the consequences of the bankruptcy, whatever the causes of it may be.

23 The Court inferred from this that facts such as imprudent conduct on the part of the travel organiser or the occurrence of exceptional or unforeseeable events cannot constitute an obstacle to the refund of money paid over or to the repatriation of consumers under Article 7 of Directive 90/314 (see Rechberger and Others, paragraphs 75 and 76).

24 Moreover, such an interpretation of Article 7 of Directive 90/314 is substantiated by the objective which that directive must pursue, which is to ensure a high level of protection for consumers (see Dillenkofer and Others, paragraph 39).

25 In the light of the above considerations, the answer to the question referred is that Article 7 of Directive 90/314 is to be interpreted as covering a situation in which the insolvency of the travel organiser is attributable to its own fraudulent conduct.

Costs

26 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

Article 7 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours is to be interpreted as covering a

situation in which the insolvency of the travel organiser is attributable to its own fraudulent conduct.

[Signatures]

* Language of the case: German.

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