HDI Global (Package travel and linked travel arrangements - Right to terminate a package travel contract - Judgment) [2024] EUECJ C-771/22 (29 July 2024)

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(Reference for a preliminary ruling – Directive (EU) 2015/2302 – Package travel and linked travel arrangements – Article 12 – Right to terminate a package travel contract – Entitlement to a full refund of any payments made for the package – Unavoidable and extraordinary circumstances – COVID-19 pandemic – Article 17 – Insolvency of the travel organiser – Security for the refund of all payments made – High level of consumer protection – Principle of equal treatment)

TWO REQUESTS for a preliminary ruling under Article 267 TFEU from the Bezirksgericht für Handelssachen Wien (District Court for Commercial Matters, Vienna, Austria) (C‑771/22) and from the Nederlandstalige Ondernemingsrechtbank Brussel (Brussels Business Court (Dutch-speaking), Belgium) (C‑45/23), made by decisions of 17 October 2022 and 19 January 2023, received at the Court on 19 December 2022 and 31 January 2023 respectively, in the proceedings

composed of A. Prechal (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Biltgen, J. Passer and M.L. Arastey Sahún, Judges,

having regard to the written procedure and further to the hearing on 7 December 2023,

– HDI Global SE, by M.A. Gütlbauer, M. Pichlmair and S. Sighartsleitner, Rechtsanwälte,

– the Belgian Government, by S. Baeyens, P. Cottin and C. Pochet, acting as Agents,

– the Greek Government, by Z. Chatzipavlou, K. Georgiadis, C. Kokkosi, K. Konsta and A. Magrippi, acting as Agents,

– the European Parliament, by M. Menegatti and I. Terwinghe, acting as Agents,

– the Council of the European Union, by N. Brzezinski and S. Emmerechts, acting as Agents,

– the European Commission, by B.‑R. Killmann, I. Rubene and F. van Schaik, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 7 March 2024,

1 These requests for a preliminary ruling concern the interpretation of Article 17 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).

2 The requests have been made in two sets of proceedings between, respectively, the Bundesarbeitskammer (Federal Chamber of Labour, Austria), the successor to the rights of a traveller, on the one hand, and HDI Global SE, the insurance company of that traveller’s travel organiser, on the other (C‑771/22), and A, B, C and D, four other travellers, on the one hand, and MS Amlin Insurance SE, the insurance company of those four other travellers’ travel organiser, on the other (C‑45/23), concerning the refusal of those insurance companies to reimburse those travellers following the insolvency of those travel organisers.

3 Article 4(6) of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59) provided:

‘If the consumer withdraws from the contract pursuant to paragraph 5, or if, for whatever cause, other than the fault of the consumer, the organizer 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.

‘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.’

‘(1) Council Directive 90/314/EEC … lays down a number of important consumer rights in relation to package travel, in particular with regard to information requirements, the liability of traders in relation to the performance of a package, and protection against the insolvency of an organiser or a retailer. However, it is necessary to adapt the legislative framework to market developments, in order to make it more suitable for the internal market, to remove ambiguities and to close legislative gaps.

(2) Tourism plays an important role in the economy of the [European] Union, and package travel, package holidays and package tours (“packages”) represent a significant proportion of the travel market. That market has undergone considerable changes since the adoption of Directive [90/314]. In addition to traditional distribution chains, the internet has become an increasingly important medium through which travel services are offered or sold. Travel services are not only combined in the form of traditional pre-arranged packages, but are often combined in a customised way. Many of those combinations of travel services are either in a legal ‘grey zone’ or are clearly not covered by Directive [90/314]. This Directive aims to adapt the scope of protection to take account of those developments, to enhance transparency, and to increase legal certainty for travellers and traders.

(3) Article 169(1) and point (a) of Article 169(2) [TFEU] provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU.

(39) Member States should ensure that travellers purchasing a package are fully protected against the organiser’s insolvency. Member States in which organisers are established should ensure that they provide security for the refund of all payments made by or on behalf of travellers and, in so far as a package includes the carriage of passengers, for the traveller’s repatriation in the event of the organiser’s insolvency. However, it should be possible to offer travellers the continuation of the package. While retaining discretion as to the way in which insolvency protection is to be arranged, Member States should ensure that the protection is effective. Effectiveness implies that the protection should become available as soon as, as a consequence of the organiser’s liquidity problems, travel services are not being performed, will not be or will only partially be performed, or where service providers require travellers to pay for them. Member States should be able to require that organisers provide travellers with a certificate documenting a direct entitlement against the provider of the insolvency protection.

(40) For the insolvency protection to be effective, it should cover the foreseeable amounts of payments affected by the organiser’s insolvency and, where applicable, the foreseeable cost for repatriations. This means that the protection should be sufficient to cover all foreseeable payments made by or on behalf of travellers in respect of packages in peak season, taking into account the period between receiving such payments and the completion of the trip or holiday, as well as, where applicable, the foreseeable cost for repatriations. That will generally mean that the security has to cover a sufficiently high percentage of the organiser’s turnover in respect of packages, and may depend on factors such as the type of packages sold, including the mode of transport, the travel destination, and any legal restrictions or the organiser’s commitments regarding the amounts of pre-payments he may accept and their timing before the start of the package. Whereas the necessary cover may be calculated on the basis of the most recent business data, for instance the turnover achieved in the last business year, organisers should be obliged to adapt the insolvency protection in the event of increased risks, including a significant increase in the sale of packages. However, effective insolvency protection should not have to take into account highly remote risks, for instance the simultaneous insolvency of several of the largest organisers, where to do so would disproportionately affect the cost of the protection, thus hampering its effectiveness. In such cases the guarantee for refunds may be limited.’

‘The purpose of this Directive is to contribute to the proper functioning of the internal market and to the achievement of a high and as uniform as possible level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States in respect of contracts between travellers and traders relating to package travel and linked travel arrangements.’

(b) accommodation which is not intrinsically part of carriage of passengers and is not for residential purposes;

(d) any other tourist service not intrinsically part of a travel service within the meaning of points (a), (b) or (c);

8 Article 5 of Directive 2015/2302, entitled ‘Pre-contractual information’, provides, in paragraph 1 thereof:

‘Member States shall ensure that, before the traveller is bound by any package travel contract or any corresponding offer, the organiser and, where the package is sold through a retailer, also the retailer shall provide the traveller with the standard information by means of the relevant form as set out in Part A or Part B of Annex I, and, where applicable to the package, with the following information …’

9 Article 11 of that directive, entitled ‘Alteration of other package travel contract terms’, provides:

2. If, before the start of the package, the organiser is constrained to alter significantly any of the main characteristics of the travel services as referred to in point (a) of the first subparagraph of Article 5(1) or cannot fulfil the special requirements as referred to in point (a) of Article 7(2), or proposes to increase the price of the package by more than 8% in accordance with Article 10(2), the traveller may within a reasonable period specified by the organiser:

If the traveller terminates the package travel contract, the traveller may accept a substitute package where this is offered by the organiser, if possible of an equivalent or a higher quality.

5. If the package travel contract is terminated pursuant to point (b) of the first subparagraph of paragraph 2 of this Article, and the traveller does not accept a substitute package, the organiser shall refund all payments made by or on behalf of the traveller without undue delay and in any event not later than 14 days after the contract is terminated. …’

10 Article 12 of Directive 2015/2302, entitled ‘Termination of the package travel contract and the right of withdrawal before the start of the package’, provides:

‘1. Member States shall ensure that the traveller may terminate the package travel contract at any time before the start of the package. Where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. …

2. Notwithstanding paragraph 1, the traveller shall have the right to terminate the package travel contract before the start of the package without paying any termination fee 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. In the event of termination of the package travel contract under this paragraph, the traveller shall be entitled to a full refund of any payments made for the package, but shall not be entitled to additional compensation.

3. 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:

(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.

4. The organiser shall provide any refunds required under paragraphs 2 and 3 or, with respect to paragraph 1, reimburse any payments made by or on behalf of the traveller for the package minus the appropriate termination fee. Such refunds or reimbursements shall be made to the traveller without undue delay and in any event not later than 14 days after the package travel contract is terminated.

11 Article 17 of that directive, entitled ‘Effectiveness and scope of insolvency protection’, provides:

‘1. Member States shall ensure that organisers established in their territory provide security for the refund of all payments made by or on behalf of travellers in so far as the relevant services are not performed as a consequence of the organiser’s insolvency. If the carriage of passengers is included in the package travel contract, organisers shall also provide security for the travellers’ repatriation. Continuation of the package may be offered.

2. The security referred to in paragraph 1 shall be effective and shall cover reasonably foreseeable costs. It shall cover the amounts of payments made by or on behalf of travellers in respect of packages, taking into account the length of the period between down payments and final payments and the completion of the packages, as well as the estimated cost for repatriations in the event of the organiser’s insolvency.

4. When the performance of the package is affected by the organiser’s insolvency, the security shall be available free of charge to ensure repatriations and, if necessary, the financing of accommodation prior to the repatriation.

5. For travel services that have not been performed, refunds shall be provided without undue delay after the traveller’s request.’

12 Part A of Annex I to that directive, entitled ‘Standard information form for package travel contracts where the use of hyperlinks is possible’, sets out, in a text box, the content of that form and indicates that, by following a hyperlink, the traveller will receive the following information:

– If the organiser or, in some Member States, the retailer becomes insolvent, payments will be refunded. …

13 Part B of Annex I to that directive, entitled ‘Standard information form for package travel contracts in situations other than those covered by Part A’, sets out, in a text box, the content of that form, and the same key rights as those set out under Part A of Annex I to that directive.

14 Paragraph 3 of the Verordnung der Bundesministerin für Digitalisierung und Wirtschaftsstandort über Pauschalreisen und verbundene Reiseleistungen (Decree of the Federal Minister for Digital and Economic Affairs on package travel and linked travel arrangements) of 28 September 2018 (BGBl. II, 260/2018), provides:

‘(1) Persons entitled to provide travel services shall ensure that the traveller is compensated for:

1. payments already made (down payments and final payments) in so far as, because of the insolvency of the person entitled to provide travel services, the travel services are not provided in whole or in part or if the provider requires the traveller to pay for those services;

2. expenses necessary for repatriation and, if necessary, the cost of accommodation prior to the repatriation incurred as a result of the insolvency of the organiser or, in the case of liability for the carriage of passengers, the insolvency of the retailer offering linked travel arrangements; and

3. where appropriate, expenses necessary for the continuation of the package travel or of the linked travel arrangement made through an intermediary. …’

15 Paragraph 10 of the Bundesgesetz über Pauschalreisen und verbundene Reiseleistungen (Pauschalreisegesetz – PRG) (Federal Law on package travel and linked travel arrangements), of 24 April 2017 (BGBl. I, 50/2017), provides:

‘(1) The traveller may terminate the package travel contract at any time before the start of the package without stating any justification for so doing. Where the traveller terminates the package travel contract under this paragraph, the travel organiser may require the traveller to pay appropriate and justifiable compensation. The package travel contract may specify reasonable standardised termination fees calculated on the basis of the duration between the date of termination of the package and the start of the package and on the basis of the expected cost savings and income resulting from alternative use of the travel services concerned. In the absence of specified standardised termination fees, the amount of the compensation shall correspond to the price of the package minus the cost savings and income from alternative uses of the travel services. At the request of the traveller, the travel organiser shall provide reasons for the amount of the compensation.

(2) Without prejudice to the right of termination provided for in subparagraph 1, the traveller may terminate the package travel contract before the start of the package without paying any compensation 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. If the traveller terminates the package travel contract under this subparagraph, he or she shall be entitled to a full refund of any payments made for the package, but shall not be entitled to additional compensation.

(4) In the event of termination pursuant to the preceding subparagraphs, the travel organiser shall refund to the traveller, without delay and not later than 14 days from receipt of the notice of termination, all payments made by or on behalf of the traveller for the package after deduction, in the case of termination as referred to in subparagraph 1, of the compensation provided for in that subparagraph.’

16 Under Article 30 of the loi relative à la vente de voyages à forfait, de prestations de voyage liées et de services de voyage (Law on the sale of package travel, linked travel arrangements and travel services), of 21 November 2017 (Moniteur belge of 1 December 2017, p. 106673; ‘the Law on the sale of package travel’), a traveller has the right to terminate his or her package travel contract ‘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 travel package, or which significantly affect the carriage of passengers to the destination’. In that situation, that article confers on the traveller entitlement to a full refund of the sums which he or she has paid to the travel organiser.

‘Organisers and retailers established in Belgium shall provide security for the refund of all payments made by or on behalf of travellers in so far as the relevant services are not performed as a consequence of the insolvency of those organisers or retailers. …’

The Royal Decree on insolvency protection relating to the sale of package travel

18 Article 3 of the arrêté royal relatif à la protection contre l’insolvabilité lors de la vente de voyages à forfait, de prestations de voyage liées et de services de voyage (Royal Decree on insolvency protection relating to the sale of package travel, linked travel arrangements and travel services), of 29 May 2018 (Moniteur belge of 11 June 2018, p. 48438; ‘the Royal Decree on insolvency protection relating to the sale of package travel’) provides:

‘The security referred to in Articles 54, 55, 65 and 72 of the Law [on the sale of package travel] shall be provided by means of an insurance contract concluded with an insurance undertaking authorised to carry out such transactions.’

‘The security in respect of the insurance contract shall be forfeited by the beneficiary as soon as the contract with the trader referred to in point 7 of Article 2 of the Law [on the sale of package travel] has been concluded during the period of validity of the insurance contract.’

‘In the event of the insolvency of the trader, the insurance contract shall provide the following security:

2° the refund of payments made when the contract was concluded with the trader;

3° the refund of payments made for the travel services that cannot be provided as a consequence of the trader’s insolvency;

4° the repatriation of the travellers, where the performance of the contract with the trader has already started and that contract provides for the carriage of the beneficiary, and, if necessary, accommodation pending the repatriation.’

21 The first paragraph of Article 13 of that royal decree limits the refund to ‘all amounts which the beneficiary has paid to the trader in respect of the travel contract where the contract has not been performed as a consequence of the trader’s insolvency or … [to] all sums paid for travel services which have not been provided as a consequence of the trader’s insolvency.’

The disputes in the main proceedings and the questions referred for a preliminary ruling

22 HDI Global is an insurance company which concluded with Flamenco Sprachreisen GmbH (‘Flamenco’), a travel organiser company, an insurance contract covering the risks associated with Flamenco’s insolvency, as referred to in Paragraph 3 of the Decree of the Federal Minister for Digital and Economic Affairs on package travel and linked travel arrangements.

23 On 3 March 2020, XY concluded a contract with Flamenco for a package trip to take place from 3 May to 2 June 2020 in Las Palmas de Gran Canaria (Spain). On 9 March 2020, XY paid the price of that trip in full, which amounted to EUR 2 656.

24 On 16 March 2020, XY terminated that contract on account, inter alia, of warnings issued by the Austrian and Spanish authorities following the spread of COVID-19. Flamenco did not challenge that termination, but did not refund to XY the price of the trip concerned.

25 On 9 June 2022, following insolvency proceedings, the Landesgericht Linz (Regional Court, Linz, Austria) declared Flamenco insolvent.

26 XY assigned to the Federal Chamber of Labour his claim against Flamenco for a refund of the price of his package travel. After that claim was assigned to it, the Federal Chamber of Labour requested that refund from HDI Global as the insurer of the risk of Flamenco’s insolvency. HDI Global refused to make that refund on the ground that it covered only the risk of non-performance of the package associated with that insolvency.

27 Following that refusal, the Federal Chamber of Labour brought proceedings against HDI Global before the referring court, the Bezirksgericht für Handelssachen Wien (District Court for Commercial Matters, Vienna, Austria).

28 That court considers, in the first place, that, in order to resolve the dispute in the main proceedings, it must be ascertained whether, where a package travel contract is terminated by a traveller before the travel organiser becomes insolvent, the entitlement to a refund enjoyed by that traveller following such termination is covered by the security against the insolvency of that travel organiser. In particular, it is necessary, according to that court, to determine whether there must be a causal link between that insolvency and the non-performance or improper performance of the travel service concerned.

29 In that regard, the referring court considers that the wording of Article 17(1) of Directive 2015/2302 suggests, in the light of the terms ‘in so far as’ and ‘as a consequence of’, that such a causal link must exist. In its view, such a requirement would have the consequence that the refunds to which a traveller is entitled following the termination of his or her package travel contract preceding the insolvency of the travel organiser concerned would not be covered by the security against such insolvency as provided for under that provision.

30 The referring court observes that recital 39 of Directive 2015/2302, however, contradicts such a reading of Article 17(1) of that directive in that it states that Member States should ensure, first, that travellers purchasing a package are ‘fully protected’ against the organiser’s insolvency and, second, that that organiser provides security, in the event of insolvency, for the refund of ‘all payments made’ by travellers and for their repatriation. It considers that the approach reflected in that recital is also borne out by the high level of consumer protection sought in the European Union, as set out in Article 114(3) TFEU, Article 169 TFEU and Article 38 of the Charter of Fundamental Rights of the European Union.

31 The referring court further notes that the issue of the scope of the protection against the travel organiser’s insolvency was raised with the Member States during discussions with the European Commission, in the context of which the Commission stated, first, that the intention of the EU legislature, by adopting, in Article 17 of Directive 2015/2302, a wording different from that set out in Article 7 of Directive 90/314, was not to limit the security conferred on travellers in the event of the travel organiser’s insolvency and, second, that, by virtue of the wording of Article 17 of Directive 2015/2302, any security was expressly precluded where the travel contract had ended prior to the occurrence of that insolvency. The referring court also observes that the Court of Justice has, in its case-law concerning Article 7 of Directive 90/314, held that the security for the refund of money paid by the traveller in the event of the travel organiser’s insolvency is conferred irrespective of the causes of that insolvency (see, to that effect, judgments of 14 May 1998, Verein für Konsumenteninformation, C‑364/96, EU:C:1998:226; of 15 June 1999, Rechberger and Others, C‑140/97, EU:C:1999:306; and of 16 February 2012, Blödel-Pawlik, C‑134/11, EU:C:2012:98).

32 In the second place, the referring court is uncertain whether, where a traveller terminates his or her package travel contract with the travel organiser because of extraordinary circumstances before the date on which the insolvency proceedings relating to that organiser were opened, but those proceedings take place during the period envisaged for the travel concerned, that traveller is entitled, by virtue of the protection guaranteed under Article 17(1) of Directive 2015/2302, to a refund of the payments which he or she has made to that travel organiser. In that regard, it considers that, having regard to the objective of consumer protection pursued by EU law, it would make no sense to take the view that a traveller is entitled to protection against the insolvency of the travel organiser where that traveller has begun his or her package travel, but not where the traveller has lawfully terminated his or her travel contract.

33 In the third place, the referring court is uncertain whether, where there is an indirect link between the termination of a package travel contract by the traveller and the insolvency of the organiser of that travel in so far as that termination and that insolvency both have their origin in the same extraordinary circumstance, such as, in the present case, the COVID-19 pandemic, that traveller’s entitlement to a refund is covered by the security against insolvency laid down in Article 17(1) of Directive 2015/2302. It refers, in that regard, to the argument put forward by the Federal Chamber of Labour according to which, if Article 17(1) of that directive were to be interpreted as meaning that that security does not apply where the travel organiser’s insolvency is due to the same extraordinary circumstance as that used to justify the termination of the package travel contract by the traveller, that traveller would have every interest in not exercising his or her right of termination and in waiting for the travel organiser to become insolvent. In the referring court’s view, such an approach would diminish the value of the right of termination which Article 12 of that directive confers on consumers.

34 In those circumstances, the Bezirksgericht für Handelssachen Wien (District Court for Commercial Matters, Vienna) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is Article 17 of Directive [2015/2302] to be interpreted as meaning that payments made by a traveller to the travel organiser before the start of the trip or holiday are only covered where the trip or holiday does not take place as a result of the insolvency of that travel organiser, or are … payments made to the travel organiser before the opening of insolvency proceedings [also] covered if the traveller terminates the contract before the occurrence of insolvency due to [extraordinary] circumstances within the meaning of Article 12 of Directive 2015/2302?

(2) Is Article 17 of Directive [2015/2302] to be interpreted as meaning that payments made by a traveller to the travel organiser before the start of the trip or holiday are covered where, even before the occurrence of insolvency, the traveller terminates the contract due to [extraordinary] circumstances within the meaning of Article 12 of that directive, but the insolvency occurred during the trip or holiday that had been booked?

(3) Is Article 17 of Directive [2015/2302] to be interpreted as meaning that payments made by a traveller to the travel organiser before the start of the trip or holiday are covered where, even before the occurrence of insolvency, the traveller terminates the contract due to [extraordinary] circumstances within the meaning of Article 12 of that directive, and the insolvency of the travel organiser occurred due to those [extraordinary] circumstances?’

35 On 13 November 2019, A, B, C and D purchased, through a retailer, Selectair Inter-Sun Reizen, from a travel organiser, Exclusive Destinations, a package trip for the price of EUR 36 832 from Brussels (Belgium) to Punta Cana (Dominican Republic) for the period from 21 to 29 March 2020.

36 Due to the spread of the COVID-19 pandemic, that trip was postponed to the period from 21 to 30 November 2020. The price of that trip was then fixed at EUR 46 428.

37 On 20 October 2020, A, B, C and D terminated their travel contract due to the continuation of the COVID-19 pandemic and asked Exclusive Destinations for a refund of the amount of EUR 36 832 which they had paid for the trip in question.

38 On 8 December 2020, the Ondernemingsrechtbank Gent (Business Court, Ghent, Belgium) declared Exclusive Destinations insolvent. On 9 December 2020, Selectair Inter-Sun Reizen refunded to A and C an amount of EUR 4 151 which had not yet been transferred to Exclusive Destinations.

39 On 22 January 2021, A, B, C and D asked MS Amlin Insurance, which insured Exclusive Destinations in the event of insolvency, for a refund of the sums which they had paid to Exclusive Destinations and which had not been refunded to them.

40 MS Amlin Insurance refused to make that refund on the ground that it provided insurance solely in respect of failure to provide travel services due to the insolvency of Exclusive Destinations. It contends that the non-performance of A, B, C and D’s trip was due to the termination by them of their travel contract and not to the insolvency of Exclusive Destinations.

41 Following that refusal, A, B, C and D brought proceedings before the referring court, the Nederlandstalige Ondernemingsrechtbank Brussel (Brussels Business Court (Dutch-speaking), Belgium), seeking an order requiring MS Amlin Insurance to pay the sum of EUR 32 681, plus interest from 22 January 2021.

42 The referring court considers that the security provided for in Article 17(1) of Directive 2015/2302 is mandatory only in so far as the relevant travel services are not performed as a consequence of the travel organiser’s insolvency. In its view, that security should therefore not cover other causes of non-performance, such as the termination of the package travel contract by the traveller because of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package. It observes that the Law on the sale of package travel and the Royal Decree on insolvency protection relating to the sale of package travel do not provide for more extensive protection for travellers in that regard. The referring court infers from this that, where, as in the present case, the travel organiser becomes insolvent after the travellers have terminated their package travel contract because of unavoidable and extraordinary circumstances, but before those travellers have been refunded sums which they had paid for that travel, those travellers do not benefit from the security provided for in Article 17(1) of Directive 2015/2302.

43 However, the referring court has doubts regarding the scope of the protection conferred by that provision.

44 First, it is uncertain whether the fact that the security provided for in Article 17(1) of Directive 2015/2302 does not apply to a traveller who is entitled to a refund of the sums which he or she has paid following the termination of his or her package travel contract because of unavoidable and extraordinary circumstances where the travel organiser became insolvent after that termination, but before the refund of payments made, allows consumers to be adequately protected in accordance with the general objective of that directive. In that regard, it recalls that that objective is to contribute to the attainment of a high level of consumer protection, as stated in recital 3 of that directive, which refers to Article 169 TFEU. Moreover, it notes that recital 39 of that directive states that travellers purchasing a package should be fully protected against the travel organiser’s insolvency and that the security which travel organisers must provide in the event of insolvency should cover the refund of all payments made by travellers. The referring court also points out that, under Directive 90/314, the protection of consumers against the insolvency of travel organisers covered all amounts which they had paid.

45 Second, the referring court is uncertain whether the insolvency protection provided for in Directive 2015/2302 does not give rise to unequal treatment. According to that court, both a traveller who is unable to begin his or her travel due to the insolvency of the travel organiser and a traveller who, following termination, is unable to obtain a refund due to that insolvency, suffer a financial loss linked to the fact that they both paid the price of their travel before the performance of the package travel contract concerned. It observes that, however, according to the wording of Article 17 of that directive, only the loss of the first traveller is covered by the protection against the travel organiser’s insolvency. The referring court is therefore unsure whether such unequal treatment is justified.

46 In those circumstances, the Nederlandstalige Ondernemingsrechtbank Brussel (Brussels Business Court (Dutch-speaking)) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Should Article 17(1) of [Directive 2015/2302] be interpreted as meaning that the security which it requires also applies to the refund of all sums already paid by travellers or on their behalf where the traveller terminates the package travel contract by reason of unavoidable and extraordinary circumstances within the meaning of Article 12([2]) of that directive and the [travel] organiser is declared insolvent after the termination of the package travel contract on that basis, but before those sums have actually been refunded to the traveller, as a result of which that traveller suffers a financial loss and consequently bears an economic risk in the event of the [travel] organiser’s liquidation?’

47 By decision of the Court of 24 October 2023, Cases C‑771/22 and C‑45/23 were joined for the purposes of the oral part of the procedure and the judgment.

Admissibility of the request for a preliminary ruling in Case C‑771/22

48 HDI Global contends that the interpretation of Article 17(1) of Directive 2015/2302 is not decisive for the outcome of the dispute in the main proceedings in Case C‑771/22. It argues that only the content of the insurance contract which it concluded with Flamenco is decisive for that outcome, such that the request for a preliminary ruling in this case seeks to clarify general or hypothetical questions, for which purpose the preliminary ruling procedure cannot be used.

49 In that regard, it must be recalled that, in the context of the cooperation between the Court of Justice and the national courts provided for in Article 267 TFEU, it is solely for the national court, before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court of Justice. Consequently, where the questions referred concern the interpretation of EU law, the Court is, in principle, required to give a ruling (judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others, C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 43 and the case-law cited).

50 It follows that questions relating to EU law enjoy a presumption of relevance. The Court may however refuse to rule on a question referred by a national court where it is quite obvious that the problem is hypothetical (see, to that effect, judgment of 22 February 2024, Consejería de Presidencia, Justicia e Interior de la Comunidad de Madrid and Others, C‑59/22, C‑110/22 and C‑159/22, EU:C:2024:149, paragraph 44 and the case-law cited).

51 In the present case, however, it does not appear that the questions referred by the referring court in Case C‑771/22 are hypothetical in the light of the dispute in the main proceedings. That dispute concerns the scope of the protection to be granted to travellers when the package travel organiser is insolvent. Article 17 of Directive 2015/2302 sets out the protection that Member States must implement for travellers against the insolvency of package travel organisers.

52 It follows that the request for a preliminary ruling in Case C‑771/22 is admissible.

The first question in Case C‑771/22 and the single question in Case C‑45/23

53 By the first question in Case C‑771/22 and the single question in Case C‑45/23, which it is appropriate to examine together, the referring courts ask, in essence, whether Article 17(1) of Directive 2015/2302 must be interpreted as meaning that the security conferred on travellers against the insolvency of the package travel organiser applies where a traveller terminates his or her package travel contract because of unavoidable and extraordinary circumstances pursuant to Article 12(2) of that directive and, after that termination, that travel organiser becomes insolvent, but that traveller has not, prior to the occurrence of that insolvency, received a full refund of any payments made to which he or she is entitled under the latter provision.

54 As a preliminary point, it should be noted that Article 12(2) of Directive 2015/2302 confers on the traveller entitlement to a full refund of any payments made for the package when that traveller terminates his or her package travel contract before the start of the package because of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of that package or which significantly affect the carriage of passengers to that destination. In addition, where the traveller exercises that entitlement, Article 12(4) of that directive requires the travel organiser to make that refund without undue delay and in any event not later than 14 days after the package travel contract is terminated.

55 In the present case, it is not disputed that the travellers at the origin of the actions in the main proceedings were entitled to terminate their package travel contract under Article 12(2) of Directive 2015/2302 on account of the outbreak and continuation of the COVID-19 pandemic. Those travellers were therefore entitled to a full refund of the sums which they had paid to the travel organisers concerned not later than 14 days after their package travel contract was terminated. Despite that entitlement, they were not reimbursed since those travel organisers had become insolvent and those organisers’ insurers did not intend to provide cover, considering that they were not required to do so in the light of the applicable national legislation transposing Article 17(1) of that directive.

56 As regards the interpretation of the latter provision, it is settled case-law that account must be taken not only of its wording, but also of its context, the objectives pursued by the rules of which it is part and, where appropriate, its origins (see, to that effect, judgment of 12 January 2023, FTI Touristik (Package travel to the Canary Islands), C‑396/21, EU:C:2023:10, paragraph 19 and the case-law cited). However, where the meaning of a provision of EU law is absolutely plain from its very wording, the Court cannot depart from that meaning (see, to that effect, judgment of 25 January 2022, VYSOČINA WIND, C‑181/20, EU:C:2022:51, paragraph 39).

57 As regards the wording of Article 17(1) of Directive 2015/2302, it provides that Member States are to ensure that package travel organisers established in their territory provide security for the refund of all payments made by or on behalf of travellers in so far as the relevant services are not performed as a consequence of the package travel organiser’s insolvency.

58 The term ‘relevant services’ could, admittedly, be understood as referring to ‘travel services’, within the meaning of Article 3(1) of Directive 2015/2302, which would mean that the protection against the insolvency of a travel organiser to be put in place by each Member State covers only situations in which the travel services stipulated in the package travel contract have not been performed as a consequence of the organiser’s insolvency. According to that reading, there should therefore be a causal link between the non-performance of those travel services and the travel organiser’s insolvency in order for the traveller to be able to benefit from the security against the organiser’s insolvency provided for in Article 17 of that directive.

59 However, as several parties to the proceedings before the Court have pointed out, unlike several other provisions of Directive 2015/2302, Article 17(1) of that directive refers not to ‘travel services’ but to ‘relevant services’, and the latter term may be understood as having a broader scope than the former term, encompassing other services provided by travel organisers such as refunds that are owed to travellers after their package travel contract has been terminated.

60 It follows that the meaning of Article 17(1) of Directive 2015/2302 is not absolutely plain from its wording. It is therefore necessary, in accordance with the case-law referred to in paragraph 56 of the present judgment, to examine the context of that provision, the objectives of that directive and, where appropriate, its origins.

61 As regards, in the first place, the context of Article 17(1) of Directive 2015/2302, first of all, Article 17(4) of that directive states that the security is to be available free of charge to ensure the repatriation of the traveller and, if necessary, the financing of accommodation prior to such repatriation when the performance of the package is affected by the travel organiser’s insolvency.

62 Article 17(5) of that directive provides that, for travel services that have not been performed, refunds are to be provided without undue delay after the traveller’s request.

63 Having regard to their wording and, in particular, to the terms ‘when the performance of the package is affected by the organiser’s insolvency’ and ‘travel services that have not been performed’ in Article 17(4) and Article 17(5) of Directive 2015/2302 respectively, those provisions are capable of supporting an interpretation of Article 17(1) of that directive according to which the concept of ‘relevant services’ covers only travel services, such that the security provided for in that article applies only where there is a causal link between the non-performance of those services and the travel organiser’s insolvency.

64 Next, Article 17(2) of Directive 2015/2302 provides that the security referred to in paragraph 1 of that article is to be effective and is to cover reasonably foreseeable costs. Thus, that security is to cover the amounts of payments made by or on behalf of travellers in respect of packages, taking into account the length of the period between down payments and final payments and the completion of the packages, as well as the estimated cost for repatriations in the event of the travel organiser’s insolvency.

65 As regards the requirement of effectiveness of the security against the travel organiser’s insolvency laid down in that provision, according to recital 39 of Directive 2015/2302, effectiveness implies that the protection against the travel organiser’s insolvency should become available as soon as, as a consequence of that organiser’s liquidity problems, travel services are not being performed, will not be or will only partially be performed, or where service providers require travellers to pay for them, which could lead to the conclusion that Article 17(2) of that directive, read in the light of those elements of recital 39 thereof, is also capable of supporting the interpretation referred to in paragraph 58 of the present judgment.

66 However, recital 39 of Directive 2015/2302 also states that Member States should ensure that travellers purchasing a package are ‘fully protected’ against the travel organiser’s insolvency and, consequently, that the security provided for in Article 17(1) of that directive covers, in the event of such insolvency, the refund of ‘all payments made by or on behalf of travellers’.

67 Moreover, recital 40 of Directive 2015/2302 states that the requirement of effectiveness of the security against the travel organiser’s insolvency entails that protection against that insolvency should cover the ‘foreseeable amounts of payments affected by the [travel] organiser’s insolvency’, which means that the security conferring that protection must, in general, cover a sufficiently high percentage of that organiser’s turnover. According to that recital, only highly remote risks, for instance the simultaneous insolvency of several of the largest travel organisers, should not have to be taken into account. Such risks are, however, unrelated to the origin of the travel organiser’s obligation to refund, whether it be non-performance of the travel contract or termination of that contract before the start of the package.

68 Any refund of payment which the travel organiser must make following the termination of the package travel contract by that organiser or by the traveller, inter alia on the basis of Article 12(2) of Directive 2015/2302, is a foreseeable amount of payment which may be affected by the travel organiser’s insolvency, for the purposes of recital 40 of that directive. Such a refund relates to payments made by the traveller following the conclusion of a package travel contract which, in principle, is covered, under Article 17(2) of that directive, by the security referred to in paragraph 1 of that article.

69 In that regard, as the Advocate General also observed in point 89 of her Opinion, the entitlement of the traveller to a full refund of any payments made in the event of termination of his or her package travel contract because of unavoidable and extraordinary circumstances, enshrined in Article 12(2) of Directive 2015/2302, would be deprived of its effectiveness if Article 17(1) of that directive were interpreted as meaning that, where the travel organiser’s insolvency occurs after that termination, the security against such insolvency does not cover the corresponding claims for refund. That assessment is equally valid in respect of the other refunds to which the traveller is entitled following the termination of the latter’s package travel contract by him or her or by the organiser and which are referred to in Article 11(5) and Article 12 of that directive.

70 Furthermore, the non-application of the security provided for in Article 17(1) of Directive 2015/2302 to claims for refund in the event of termination by the traveller of his or her package travel contract is liable to dissuade that traveller from exercising the right of termination which that directive confers on him or her in certain situations.

71 Thus, Article 17(2) of Directive 2015/2302, read in the light of the elements of recital 39 thereof as referred to in paragraph 66 of the present judgment and of recital 40 of that directive, may support an interpretation of paragraph 1 of that article to the effect that that security applies to any refund owed by the travel organiser to the traveller where the package travel contract has been terminated, in one of the situations referred to in that directive, prior to the occurrence of that organiser’s insolvency.

72 Lastly, it should be noted that, under Article 5 of Directive 2015/2302, which refers to Part A and Part B of Annex I to that directive, the travel organiser is required to inform the traveller, before he or she is bound by any package travel contract, of the key rights under that directive and, inter alia, that ‘if the organiser … becomes insolvent, payments will be refunded’; no reference is made to any limitation of that right to a refund in the event of the travel organiser’s insolvency.

73 Those provisions also support an interpretation of the scope of the security conferred, in Article 17(1) of Directive 2015/2302, on travellers against the travel organiser’s insolvency which includes the refunds owed by that organiser to the traveller following the termination of the package travel contract in one of the situations referred to in that directive. An interpretation of the latter provision limiting that scope solely to refunds linked to non-performance of travel services caused by the travel organiser’s insolvency would result in Article 5 of that directive misleading the traveller regarding his or her right to a refund in the event of such insolvency.

74 As regards, in the second place, the objective of Directive 2015/2302, it is apparent from Article 1 of that directive, read in conjunction with recitals 1 to 3 thereof, that it seeks to remove ambiguities, to close legislative gaps and to adapt the scope of the protection conferred on travellers by Directive 90/314 in order to take account of market developments, as well as to contribute to the attainment of a high level of consumer protection as required by Article 169 TFEU. Directive 2015/2302 thus contributes to ensuring a high level of consumer protection in EU package travel policy, in accordance with Article 38 of the Charter of Fundamental Rights of the European Union.

75 An interpretation of Article 17(1) of Directive 2015/2302 excluding from the security against the travel organiser’s insolvency refunds owed to travellers following a termination which took place, in one of the situations referred to in that directive, prior to the occurrence of that insolvency would amount to reducing the protection of those travellers as compared with the protection conferred on them by Directive 90/314.

76 Article 7 of Directive 90/314 stipulated that travel organisers were to provide sufficient evidence of security for the refund of money paid over by the consumer in the event of insolvency. The Court has held that that article was designed to safeguard all the consumer rights mentioned therein and thus to protect consumers against all the risks defined in that article and resulting from the insolvency of travel organisers (see, to that effect, judgment of 15 June 1999, Rechberger and Others, C‑140/97, EU:C:1999:306, paragraph 61). The fundamental objective of that article was therefore to ensure the refund of money paid over by the traveller in the event of the travel organiser’s insolvency, without that security being subject to any specific condition regarding the causes of the travel organiser’s insolvency (see, to that effect, judgment of 16 February 2012, Blödel-Pawlik, C‑134/11, EU:C:2012:98, paragraphs 20 and 21).

77 The foregoing assessment is not called into question by the fact that Directive 90/314 did not provide for a right for the traveller to terminate the package travel contract and to obtain a full refund of any payments made that is equivalent to the right now conferred on him or her under Article 12(2) of Directive 2015/2302.

78 Indeed, as the Advocate General also observed in point 82 of her Opinion, a right of termination together with a right to a refund of payments made by the traveller was already established by Directive 90/314 in situations now governed by Directive 2015/2302. Thus, the right of the traveller to terminate his or her package travel contract and to obtain a refund of all the sums which he or she has paid pursuant to that contract where the travel organiser is constrained to alter that contract significantly, as referred to in Article 11(5) of Directive 2015/2302, corresponds to the right that was laid down in Article 4(6) of Directive 90/314.

79 Consequently, if Article 17(1) of Directive 2015/2302 were to be interpreted as limiting the security against the travel organiser’s insolvency to refunds owed to travellers on account of the non-performance of package travel caused by such insolvency, that security would exclude any refund owed to the traveller following termination which took place before that insolvency occurred, including a refund owed to the traveller under Article 11(5) of that directive, which would constitute a reduction in the level of consumer protection that was guaranteed by Directive 90/314.

80 As regards, in the third place, the origins of Directive 2015/2302, the precise scope of Article 17(1) of that directive cannot be inferred from the legislative history of that directive. As the Advocate General also states in points 62 to 83 of her Opinion, the intention of the EU legislature with regard to the scope of the protection against the travel organiser’s insolvency under Article 17(1) of Directive 2015/2302 is not clear from that legislative history. The Commission infers from the origins of that directive that, in adopting that provision, the EU legislature intended to depart from the previous level of protection of travellers against the travel organiser’s insolvency and to exclude from the security against such insolvency refund claims of travellers that arose before that insolvency occurred, whereas the European Parliament contends that it is apparent from those origins that the EU legislature intended to maintain the previous level of protection of travellers against such insolvency, with the result that the security against that insolvency includes refund claims of a traveller that arose before that insolvency occurred. The Council of the European Union, for its part, has not explained what the intention of the EU legislature was when it adopted Article 17(1) of Directive 2015/2302.

81 It follows from the foregoing that, while the wording of Article 17(1) of Directive 2015/2302 and certain aspects of the context of that provision may militate in favour of an interpretation that excludes from the scope of that provision refund claims that arose following a termination of the package travel contract which took place, in one of the situations referred to in that directive, prior to the occurrence of the travel organiser’s insolvency, other aspects of the context of that provision and the objective of that directive tend, on the contrary, to support an interpretation that includes such claims within the scope of that provision.

82 If the wording of secondary EU law is open to more than one interpretation, preference should be given to the interpretation which renders the provision concerned consistent with primary law rather than to the interpretation which leads to that provision being incompatible with primary law. In accordance with a general principle of interpretation, an EU act must be interpreted, as far as possible, in such a way as not to affect its validity and in conformity with primary law as a whole, including the principle of equal treatment (see, to that effect, judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraphs 47 and 48, and of 16 November 2023, Ligue des droits humains (Verification by the supervisory authority of data processing), C‑333/22, EU:C:2023:874, paragraph 57 and the case-law cited). That principle is specifically referred to by the referring court in Case C‑45/23, as noted in paragraph 45 of the present judgment.

83 The principle of equal treatment, which is a general principle of EU law, requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see, to that effect, judgment of 30 November 2023, MG v EIB, C‑173/22 P, EU:C:2023:932, paragraph 45 and the case-law cited).

84 As is apparent from the case-law of the Court, the assessment as to whether situations are comparable for the purpose of determining whether that general principle has been observed must be made in the light of the objective pursued by the act containing the provision in question (see, to that effect, judgment of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, paragraph 49).

85 As stated in paragraph 74 of the present judgment, the objective of Directive 2015/2302 is to attain a high level of consumer protection. Article 17 of that directive contributes to the attainment of that objective by seeking to protect the traveller from the financial risk entailed by the travel organiser’s insolvency. In view of the fact that the traveller pays all or part of the price of his or her package travel before he or she is able to use the travel services of the travel organiser, that traveller incurs the risk of losing the corresponding sum if that travel organiser subsequently becomes insolvent.

86 In the light of that objective, the point of reference for comparing the situation of a traveller who, after paying all or part of the price of his or her package travel, has terminated his or her package travel contract in one of the situations referred to in that directive, but who has not received a refund because the travel organiser became insolvent after that termination, on the one hand, and the situation of a traveller whose package travel has not been performed and who has not received a refund as a consequence of that organiser’s insolvency, on the other, must be the risk of financial loss incurred by the traveller concerned.

87 In view of that point of reference, the situation of the two travellers referred to above is comparable. In both cases, the traveller is exposed to the financial risk of not being able to obtain, as a consequence of the travel organiser’s insolvency, a refund of the sums which he or she has paid to that organiser even though he or she would be entitled to it under Directive 2015/2302.

88 Consequently, in accordance with the principle of equal treatment, both the traveller whose package travel cannot be performed as a consequence of the travel organiser’s insolvency and the traveller who has terminated his or her package travel contract, inter alia, pursuant to Article 12(2) of Directive 2015/2302, must benefit from the security against the travel organiser’s insolvency provided for in Article 17(1) of that directive as regards the refunds owed to them, unless a difference in treatment between those two categories of travellers is objectively justified.

89 As regards the latter aspect, there appears to be nothing to justify a difference in treatment between those categories of travellers. In particular, as regards the possibility of excluding highly remote risks from the scope of the protection against the travel organiser’s insolvency, highlighted by some of the parties before the Court on the basis of recital 40 of Directive 2015/2302, it is not apparent from the documents before the Court that such an exclusion was provided for in the national legislation or the insurance contracts at issue in the main proceedings. In any event, any such exclusion would not justify such a difference in treatment. As stated in recital 40 of that directive, that exclusion covers risks such as the simultaneous insolvency of several of the largest travel organisers. It has no bearing on the question whether the refund claim of the traveller affected by the travel organiser’s insolvency arises from the non-performance of the package or from the exercise by that traveller of his or her right to terminate the package travel contract in one of the situations referred to in that directive.

90 Accordingly, in the light of the case-law cited in paragraph 82 of the present judgment and the principle of equal treatment, Article 17(1) of Directive 2015/2302 must be interpreted as including, in the security against the insolvency of travel organisers, refund claims of travellers that arose following the termination of their package travel contract which took place, in one of the situations referred to in that directive, before the travel organiser became insolvent.

91 In the light of all the foregoing, the answer to the first question in Case C‑771/22 and the single question in Case C‑45/23 is that Article 17(1) of Directive 2015/2302 must be interpreted as meaning that the security conferred on travellers against the insolvency of the package travel organiser applies where a traveller terminates his or her package travel contract because of unavoidable and extraordinary circumstances pursuant to Article 12(2) of that directive and, after that termination, that travel organiser becomes insolvent, but that traveller has not, prior to the occurrence of that insolvency, received a full refund of any payments made to which he or she is entitled under the latter provision.

92 In the light of the answer to the first question in Case C‑771/22, there is no need to answer the second and third questions in that case.

93 Since these proceedings are, for the parties to the main proceedings, a step in the actions pending before the referring courts, the decision on costs is a matter for those courts. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 17(1) 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,

must be interpreted as meaning that the security conferred on travellers against the insolvency of the package travel organiser applies where a traveller terminates his or her package travel contract because of unavoidable and extraordinary circumstances pursuant to Article 12(2) of that directive and, after that termination, that travel organiser becomes insolvent, but that traveller has not, prior to the occurrence of that insolvency, received a full refund of any payments made to which he or she is entitled under the latter provision.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> HDI Global (Package travel and linked travel arrangements - Right to terminate a package travel contract - Judgment) [2024] EUECJ C-771/22 (29 July 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/C77122.html Cite as: [2024] Bus LR 1629, [2024] EUECJ C-771/22, ECLI:EU:C:2024:644, EU:C:2024:644, [2024] WLR(D) 389

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