Cologne Local Court, 01.12.011, Ref. 138 C 323/11
The following diagram shows the various rights a traveller can assert if the trip they have booked has a defect.
According to § 651c BGB, a travel defect exists if the trip does not have the characteristics guaranteed by the organiser or if other defects cancel or reduce its value or suitability for recreation or for the purpose otherwise stipulated in the contract.
According to §651c Para. 2 BGB, the traveller can demand remedy from the tour operator. However, the tour organiser may refuse to remedy the situation if it requires disproportionate effort.
If the tour operator fails to remedy the situation within a reasonable period set by the traveller, the traveller may remedy the situation themselves in accordance with Section 651c (3) BGB and demand compensation for the necessary expenses.
Of course, the traveller can also claim a reduction in the travel price in accordance with § 651d BGB. However, such a reduction shall not apply if the traveller culpably fails to report the defect.
In accordance with Section 651e BGB, the traveller may terminate the contract if the trip is significantly impaired as a result of a defect of the type described in Section 651c BGB.
Irrespective of the reduction or cancellation, the traveller can also demand compensation for non-fulfilment in accordance with § 651f BGB. However, this possibility does not exist if the defect in the trip is due to a circumstance for which the tour operator is not responsible.
In the above-mentioned judgement of the Cologne District Court, the traveller wanted to claim a price reduction of 50% because, in his opinion, the tour guide on site showed little initiative and did not know important local features.
Facts of the Case:
Plaintiff had booked a long trip to Ethiopia
The plaintiff traveller had registered with the defendant tour operator for a trip to Ethiopia "20 days in Ethiopia/from the north to the lakes" with a return flight from Frankfurt to Adis Ababa. The trip included a round trip by charter bus according to the itinerary. The price also included a German-speaking tour guide. The price of the trip was 2,085.00 euros.
In the travel brochure for the trip in question, one of the tour guides in Ethiopia was presented with a picture, stating that he had been inspired to become a tour guide a few years ago and that there was now nothing better for him than to go on a discovery tour of Ethiopia with the guests.
According to the plaintiff, the tour guide was lazy and ignorant
According to the plaintiff, however, this promise in the brochure was not fulfilled on site. The tour guide practically never spoke on his own initiative and only provided inadequate information about the day's itinerary, the sights and the flora and fauna. Moreover, he was not aware of the Timkat festival, which is famous in the region.
The plaintiff was therefore of the opinion that she was entitled to a price reduction
Accordingly, the plaintiff was of the opinion that she was entitled to a travel price reduction of 50 % = 1,042.50 euros.
District Court of Cologne’s ruling:
The Cologne Local Court partially agreed with the plaintiff's view.
Court partially followed the plaintiff's view
In the opinion of the court, the plaintiff was entitled to demand a reduction of the travel price from the defendant in accordance with § 651 d para. 1, 651 c para. 1, 638 para. 3 BGB for inadequate travel organisation in the amount of 312.75 euros.
According to the results of the taking of evidence, the court was convinced that the tour guide provided by the defendant did not meet the requirements profile for a German-speaking tour guide as stated and described in detail in the travel brochure, even according to the nature of the booked trip.
In principle, the requirements for the proper execution of a trip with regard to a tour guide owed by the tour operator would depend on the agreements made in the travel contract and, on the other hand, on the character of the booked trip and what qualifications are required of the tour guide with regard to the specific nature of the trip.
Due to the catalogue description, the plaintiff was entitled to rely on a proper tour guide
According to the defendant's catalogue description, a German-speaking tour guide would have been owed, who, according to the illustrated description of a tour guide with commitment, was to go on a discovery tour through Ethiopia with the guests.
Based on the description in the brochure, it would have been expected that the tour guide would have provided the essential information and basic information about the individual sights and places visited.
The tour guide provided by the defendant for the plaintiff's trip did not fulfil these requirements.
Witnesses unanimously confirmed the incompetence of the tour guide
The witnesses had unanimously stated that the tour guide was more of a tour guide and was only insufficiently active.
He had only provided a little information about the sights visited and had also paid little attention to the tour group.
Taking into account the nature of the trip as an adventure holiday, the court considered a reduction in the travel price of 15 % = € 312.75 to be appropriate, taking into account the overall circumstances.
Source: Cologne Local Court
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