The rules can be found in the German Package Travel Directive - BGB § 651 k
The provision is incorporated into German law as a result of an EU directive - 90/314/EWG of 13 June 1990. The same EU directive resulted in the Danish Act on Package Travel, law 1993-06-30 no 472.
According to the Danish Act on Package Travel, as well as the German equivalent legislation, its provisions apply only if offered more than one service, which for the vast majority of holiday rental industry is not the case.
In Denmark the provisions are interpreted by its wording, which is why holiday house rental industry are generally not covered by the rules, but possibly might be included if the rental of the holiday house is attached by sale of a supplement (e.g. a ferry ticket).
The similar does not apply in Germany because the rules are applied by analogy, also in regards to Holiday House Rental. This is why the holiday rental industry in Germany is subject to BGB § 651 k.
As this is a mandatory statutory provision - that is, a deviation will not be permitted to the disadvantage of the consumer – and the consumer can under the Rome Convention Article 5 not be deprived of the protection afforded to him under the mandatory statutory provision, applicable in the country where he has his residence.
1) If there in the residing country, prior to the agreement, has been addressed an offer to him or by advertisement, and that he at that point took action on his part, is necessary for it the agreement to be made.
2) If the other party or his agent received the consumer's order in that country.
Illustrated by the above, there is no doubt that the statutory provision applies to the holiday rental industry because it cannot be derogated from detriment of the consumer. The question is to what extent the Danish Holiday House Letters will be covered by the rules, or in other words, whether there may be situations that fall outside the above limitations.
BGB § 651 k explicitly say that Holiday House Rental Agencies based in another EU Member State or in another Member State of the EEA will be covered by the statutory provision - at least in certain situations. It must be pointed out that the German courts, by virtue of the German Package Travel Directive also applies by analogy to holiday rental industry, therefore probably also want to interpret it restrictively when it comes to the protection of German consumers in the sense that it will easily consider the provisions for applicable.
Based on the German legal literature and case law, we conclude that the German law applies in the following cases (which are not an exhaustive list, but merely examples):
• If the agency sends catalogs to Germany, and the tenant signing the contract from Germany - in writing or orally. (A representation office in Germany is not necessary).
• If the Holiday House rented through a German travel agency.
• If the lease is signed with the German tenants from Germany.
• If the lease is signed with the agency in Denmark and the Danish agency has an office in Germany.
• If the conclusion of the lease is from Germany via the Internet.
As far as booking through the Internet, it does not matter whether the site is a .com or a .dk top level domain or where the server is geographically located.
Basically the law is the general domestic and international law in relation to trade over the Internet in the country of the seller, i.e. where the owner of the site is domiciled or headquartered.
In our case with a Danish Holiday House Rental Agency result in Danish law and thus a situation that falls outside the BGB § 651 k. This situation should be read in conjunction with the above about the possibility of waiving German consumer-mandatory law.
Although the law will determine that any dispute shall be settled under Danish law, the mandatory provisions cf. above will still be taken into account, and then the insolvency insurance must be taken out.
In the case of booking through the Internet, the conclusion will then be that such an order will be subject to requirements of insolvency insurance.
Based on the German legal literature and case law, we conclude that the German legislation does not apply:
• if the lease is signed in Denmark between the German customer and the Danish agency, and the agency does not have its head office in Germany or in any other way, or have been, active in Germany. Active meaning distributing catalogs or advertising in printed or electronic media.
As shown above, all Danish agencies that rent to the Germans, in practice, be subject to the rules on insolvency insurance.
November 2003 / The Association of Danish Holiday House Letters
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