(1) The organiser is to ensure that the price of the package paid is refunded to the traveller to the extent that, in the case of the organiser’s insolvency
1. travel services fail to materialise or
2. the traveller complies, with regard to travel services provided, with requests for payment made by service providers whose claims for payment the organiser has not discharged.
Where the contract also covers the carriage of the traveller, the organiser moreover is to ensure the agreed repatriation and the accommodation until the time of repatriation. The opening of insolvency proceedings regarding the assets of the organiser and the rejection of an application for opening of insolvency proceedings for insufficiency of assets are equivalent to insolvency.
(2) The organiser may perform the duties under subsection (1), subject to sentence 2, from 1 November 2021 onwards only by concluding a contract of guarantee with a travel guarantee fund authorised to operate its business under the Act on the Protection against Insolvency by Travel Guarantee Funds (Reisesicherungsfondsgesetz). Organisers who achieved a turnover in the last complete fiscal year as defined in section 1 no. 2 (a) of the Act on the Protection against Insolvency by Travel Guarantee Funds of less than 10 million euros may comply with the obligations under subsection (1) in the respectively subsequent fiscal year also
1. by means of an insurance policy taken out with an insurance company authorised to operate its business within the territorial extent of this Code, or
2. by the payment guarantee of a banking institution authorised to operate its business within the territorial extent of this Code.
The organiser must comply with the obligations under subsection (1) without regard to the traveller’s place of residence, the place of departure or the place at which the contract was concluded.
(3) The travel guarantee fund, the insurer or the banking institution (guarantor) may offer the continuation of the package to the traveller. Where the traveller demands a refund under subsection 1, the guarantor is to comply with this claim without undue delay. Insurers and banking institutions may limit their obligation to assume liabilities resulting from contracts under subsection (2) sentence 2 nos. 1 and 2 to one million euros for each insolvency of an organiser who achieved a turnover, as defined in section 1 no. 2 (a) of the Act on the Protection against Insolvency by Travel Guarantee Funds, of less than three million euros in the last complete fiscal year. Where the benefits to be provided in this case exceed the maximum amount agreed, the individual claims of the travellers will be reduced in the ratio of their total amount to the maximum amount.
(4) By way of discharging their duties under subsection (1), the organiser is to procure to the traveller a direct claim on the guarantor and is to provide proof by a confirmation (security certificate) issued by the guarantor or at the guarantor’s behest in accordance with Article 252 of the Introductory Act to the Civil Code. The guarantor named in the contract under Article 250 section 6 2 no. 3 of the Introductory Act to the Civil Code may not invoke, in relation to the traveller, either objections under the guarantor contract nor its termination if the termination was effected after conclusion of the package travel contract. In the cases governed by sentence 2, the traveller’s claim vis-à-vis the organiser devolves to the guarantor to the extent that the latter satisfies the traveller’s claim.