Which Events have been Cancelled?
The list of events which have been cancelled is extensive. Many of these events have been cancelled due to governmental measures in coordination with health experts. Such measures have been taken to reduce the spread of the virus. Other events have been cancelled not directly due to governmental orders but as precautionary measures by private groups. Germany has placed a ban on events which involve people physically meeting in a location until April 5th at the earliest. As that date approaches and as cases continue to rise in Germany it is possible that further bans will be put into place.
At first events involving over a thousand people were cancelled before it became events of more than one hundred people indoors and five hundred outdoors. With the ban on contact that is in place and the general demand for social distancing, events have been moved online or have been banned.
Events ranging from Bundesliga matches, other sporting events, music concerts, theatre productions, international fairs and many others have been cancelled under these restrictions.
What Happens if an Event cannot take place due to an Official Ban?
When an event faces cancellation due to government ban such as in the case of COVID-19 coronavirus, the organiser is not generally at fault for the event’s cancellation. Many concerts and other big events have stated that they will reschedule the events and postpone them until it is safe to do so again. At the moment, for many event holders, it is not possible to give an exact date as to when that will occur.
Postponement is an option that is worth pursuing where possible as it means that those who wished to attend would have the option to attend it in the future. However, this is not possible for many events and thus refunding customers is required. This will depend on the nature of the event. For some big events, postponing them until a further date may be achievable, particularly where the event concerns an act which the audience really wants to see and thus the date is not as important as the act themselves. Other events will be more specific to the date in question. In most cases postponement when possible is preferable to cancellation but once again it is dependent on the nature of the event.
In claims of additional damages, organisers can claim “force majeure”. Force majeure refers to external events beyond the control of the organiser which impact their ability to host this event. A force majeure event is one that must not have been foreseeable and cannot be prevented by actions taken by the organiser. Having a force majeure clause in any contracts signed or in any agreements will of course strengthen the case. It should be noted that force majeure is used for further damages as opposed to prevent the paying of refunds to customers.
However, claiming force majeure involves demonstrating how the external event impacted the event and led to its postponement. It is not enough that the external event has taken place but it must be shown that the event lead to the cancellation of the event. Therefore issues such as dates of organisation of event will be key. Our article on “Force Majeure, COVID-19 and Commercial Law” covers the topic of force majeure in greater detail.
Another protection to event organisers from damages claims is through the principle of “impossibility”. This is legislated for under § 275 BGB “A claim for performance is excluded to the extent that performance is impossible for the obligor or for any other person.” Although they may still be required to refund their customers, they may not be liable for further damages arising from the cancellation of the event.
What Happens if the Cancellation of the Event Occurred without an Official Order?
Generally, events can be cancelled without official orders and even without global pandemics. Events can be cancelled due to illnesses on the part of the performer or for a number of other reasons. In the event of an event having to be cancelled due to an official order by the government to prevent the spread of the pandemic, it is not the fault of the organiser that the event could not take place.
However, if the event was cancelled as a mere precaution and without an official government order then the organiser is liable to provide a refund for the event and could be found liable for damages depending on the circumstances of the case. Damages in this case mean if performers had made travel arrangements and had paid for accommodation etc.
Organisers will not be at fault, however, if the cancellation was linked to protecting public health and safety. In this example, the cancellation did not occur due to a precautionary measure but because of more concrete reasons. These concrete reasons would concern employees or those involved with the event tracing an outbreak of coronavirus to the event location.
If the event organiser has had their staff continue working despite showing signs of the virus, or not acted in accordance with official guidelines regarding how they should respond, the organiser can be held liable. In this case, the event has had to be cancelled due to those involved contracting the virus but the event organiser could have possibly prevented an outbreak had they acted sooner.
Do Customers have to Accept Postponement rather than a Refund?
When it comes to events involving a fixed date then the short answer here is no. Customers can demand a refund for the event not having taken place. In some cases, the customer may not be able to attend the rescheduled event and thus cannot simply go to the event that has been postponed. Even now it is difficult for event organisers to choose an alternative date for the postponed event to take place on as in the current climate organisers simply do not know when they will be able to have the event take place.
However, if the event took place before the contact ban was initiated and the customer did not attend the event out of fear of contracting the virus, then they may not be entitled to a refund. This of course depends on the circumstances of the case, but if there was no particular reason to fear the event (such as cases linked to it or it being in an area associated with the outbreak) then it will be more difficult to argue that the organiser is responsible for providing a refund. If as an organiser they provide a refund is dependent on the individual organiser.
In some cases, a partial refund may be obtainable. This for example applies if, for example, a customer has a season ticket for a football team and the season is cancelled. If they have not been able to go to all the football matches which they were entitled to attend, due to the cancellation of the season due to COVID-19, then they would be entitled to a percentage of their ticket back in accordance with the number of games cancelled.
Cancellation of Events: Recommendation for Clients
In the event of the cancellation of events, organisers should seek to postpone events where possible until the crisis has cleared. If you have been affected by the cancellation of events due to COVID-19 coronavirus here are the services our legal team offers:
- Review of contracts: in this case we especially review for the existence of force majeure clauses and what is covered by them,
- Legal review: we examine what the legal situation was at the time of cancellation to determine what liability exists,
- Facilitation: we act where possible to ensure there is an amicable resolution to disputes arising,
- Assertion of claim: however, where our clients have been wronged then we will assert their claims inside or outside of court,
- Further assistance: going forward, our contract lawyers will ensure that future contracts are drafted bearing these events in mind,
- Insurance: our lawyers will review insurance policies held by clients for certain events or event locations.
If you want further support concerning the cancellation of events then make sure to contact us using the details below.
At Schlun & Elseven Attorneys, our legal team continues to provide support and counsel to our clients throughout the COVID-19 crisis. Our offices are located in Cologne, Aachen and Düsseldorf and our further conference room facilities are located in Berlin, Munich, Hamburg, Stuttgart and Frankfurt. However, at the moment we would urge our clients to contact us remotely as we can provide our services by phone, through email and by video conferencing. Further updates on legal developments in Germany will be accessible on our “Coronavirus COVID-19 Crisis Center” page.
For updates on the COVID-19 coronavirus crisis in Germany as they occur please visit the Robert Koch-Institut website. Updates here can be found in English as well as German.
If you need further assistance around legal issues concerning the cancellation of events then please contact our lawyers. We operate in a number of languages including English. We will remain active through this crisis to ensure that our clients receive the assistance they deserve. Contact us today for further counsel.