Travellers protected even if operator is fraudulent, says court
By Eric van Puyvelde | Friday 17 February 2012
The protection conferred on consumers under Directive 90/314/EEC on package travel, package holidays and package tours in the event of insolvency of the travel organiser applies even when such insolvency is due to the operator’s fraudulent conduct. The EU Court of Justice ruled thus, on 16 February, in a case referred by a German court
The Landgericht Hamburg has to rule in an action brought by a traveller against the insurance company HanseMerkur Reiseversicherung AG, which refused to reimburse the price of a package deal trip that had to be cancelled as a result of the insolvency of the organiser, Rhein Reisen GmbH. According to the Landgericht, the organiser had never really intended to organise the trip and had to declare insolvency because it had embezzled the money paid by prospective travellers. The operator had taken out insurance against insolvency with HanseMerkur, but when the insurance company was asked to provide reimbursement, it refused on the ground that the directive is not intended to protect travellers against fraudulent conduct on the part of a travel organiser.
The court held that the protection conferred on travellers under the directive applies even where the insolvency results from the organiser’s own fraudulent conduct. The directive is specifically aimed at arming consumers against the consequences of insolvency, whatever its causes. The fact that the insolvency of the travel organiser is attributable to its own fraudulent conduct cannot constitute an obstacle to the refund of money paid by travellers or to their repatriation.(1) Case C-134/11