On 29 February 2024, the Court of Justice of the European Union handed down judgments in two cases – C-584/22 and C-299/22 – in which the interests of the tour operator were represented by attorney at law Edmundas Rusinas. These cases analysed a number of considerations relating to the impact of the COVID-19 epidemic on package travel, which are relevant for all Member States. The clarifications made by the Court of Justice are important both for the future practice of national courts and for legal doctrine.

In this article, we will look in more detail at the Court of Justice’s case No c-299/22 and the interpretations given therein.

The case before the national court is a dispute between a traveller and a tour operator over the reimbursement of money paid for a tourist package travel.  The traveller entered into a package travel contract with a tour operator, under which the company undertook to organise a holiday for the traveller’s family to the United Arab Emirates from 1 to 8 March 2020. The travel package included, among other things, a flight from Vilnius (Lithuania) to Dubai (United Arab Emirates) and back, as well as seven nights in a hotel. On 27 February 2020, i.e. just over one day before the start of the travel, the traveller informed the tour operator that he wished to terminate the travel package and asked to be allowed to use the money paid for another trip at a later date when the health risks related to the outbreak of the COVID‑19 outbreak had been reduced. The tour operator refused the traveller’s request on the grounds that the trip would take place and that there were no disruptions to the travel.

The traveller’s family did not go on the trip but brought an action before the national court, claiming that they were entitled to recover the full amount of the money they had paid to the tour operator, since the cancellation of the package contract was on account of the occurrence, at the place of destination of the package tour or in the immediate vicinity thereof, of unavoidable and extraordinary circumstances which were likely to make it impossible to carry out the tour safely or to transport the passengers to the destination, in particular without exposing them to inconvenience or health risks. The traveller’s position was based on the fact that in February 2020, information published by both the competent authorities and the media about the outbreak of the COVID‑19 pandemic raised reasonable doubts as to the safety of the journey and whether it was possible to undertake it at all. Thus, the increase in the number of cases of COVID‑19 infection around the world, flight restrictions, the adoption of official recommendations advising travellers against going to crowded places and travelling abroad, and the adoption of other measures to contain the spread of COVID‑19, would demonstrate the existence of a situation of danger on a global scale.

The tour operator disputed the validity of the traveller’s claims and argued that on the date of termination of the contract for the travel package in question, 27 February 2020, there was no outbreak of COVID‑19, the World Health Organisation had not yet declared COVID-19 to be a global pandemic, and the travel package could therefore have been, and as was subsequently discovered, had been, implemented.

The national courts of first instance and appeal dismissed the traveller’s claim because there was no reason to consider the circumstances relied on by the traveller as “force majeure” circumstances within the meaning of Article 6.750 of the Civil Code of the Republic of Lithuania, which is the term used in Lithuanian law to define the concept of “unavoidable and extraordinary circumstances” referred to in Article 12 (2) of Directive 2015/2302. Moreover, the traveller ordered the trip on 10 February 2020, when the security measures had already been published, and only 17 days after the traveller ordered the trip, the level of risk associated with the trip had not changed.

After the case was brought before the Supreme Court of Lithuania, it was suspended after the court decided to clarify the relevant issues relevant for the fair examination of the case, found in   the Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (hereinafter Travel directive) and issues related to its application.  The Supreme Court of Lithuania has referred the following questions to the Court of Justice for a preliminary ruling:

1. Is an official warning by the authorities of the State of departure and/or arrival to refrain from unnecessary travel and/or the designation of the country of destination (and possibly also the country of departure) as a “risk area” required in order to be considered as being in the presence of unavoidable and extraordinary circumstances at the place of destination, or in the immediate vicinity of the place of destination, within the meaning of first sentenceof Article 12(2) of Directive 2015/2302?

2. In assessing whether, at the time of termination of the package travel contract, unavoidable and extraordinary circumstances exist at the place of destination or in the immediate vicinity of the place of destination, and whether they have a significant impact on the performance of the package: i) only objective circumstances are to be taken into account, namely, whether the serious effect on the performance of the package is limited to objective impossibility and must be interpreted as including only cases where performance of the contract becomes neither physically nor legally possible, or whether it nevertheless includes cases where performance of the contract is not impossible but (in this case – due to a substantiated fear of contracting COVID‑19 infection) becomes complex and (or) economically ineffective (in the sense of the risks to travellers’ safety, health and (or) life in the possibility to implement their travel package objectives); (ii) are subjective factors such as the presence of minor children travelling with the traveller, or the fact that the traveller is a member of a higher-risk group due to his age, state of health, etc., relevant? Does a traveller have the right to terminate a package travel contract if the pandemic and related circumstances, in the opinion of the average traveller, make the journey to and from the place of destination unsafe, inconvenient or cause the traveller a reasonable apprehension of a risk to health or of contracting a dangerous virus?

3. Is the right to terminate the contract without payment of a termination fee in any way (e.g. by withholding such a right; by applying stricter criteria for assessing the reasonableness of the adverse impact on the performance of the package, etc.) linked to the fact that the circumstances on which the traveller relies were already present, or at least foreseeable/expected, at the time of the booking? Should the criterion of reasonable foreseeability in the context of a pandemic take account of the fact that, although the WHO had already published information on the spread of the virus when the travel package contract [at issue in the main proceedings] was concluded, the course and consequences of the pandemic were difficult to predict, there were no clear measures for the containment and control of the infection, there were no sufficient data on the infection itself, and there was a marked increase in the dynamics of infection from the moment of booking the trip to the time of its termination?

4. In assessing whether, at the time of termination of a package travel contract, unavoidable and extraordinary circumstances exist at or immediately adjacent to the place of destination and have a significant impact on the performance of the package, does the term “place of destination or its immediate vicinity” cover only the State of destination or, having regard to the nature of the unavoidable and extraordinary circumstances- viral contagion, includes the country of departure, as well as the points related to the departure and return from the journey (connecting points, certain means of transport, etc.)?

Before discussing each of the questions referred for a preliminary ruling by the national court and the Court of Justice’s position on the interpretation of those questions, it should be noted that in the present case, the question of the distinction between exceptional circumstances and force majeure and the disclosure of their content was also raised.

As is well known, recital of point 31 of the Travel Directive states that “Travellers should also be able to terminate the package travel contract at any time before the start of the package in return for payment of an appropriate and justifiable termination fee, taking into account expected cost savings and income from alternative deployment of the travel services. They should also have the right to terminate the package travel contract without paying any termination fee where unavoidable and extraordinary circumstances will significantly affect the performance of the package. This may cover for example warfare, other serious security problems such as terrorism, significant risks to human health such as the outbreak of a serious disease at the travel destination, or natural disasters such as floods, earthquakes or weather conditions which make it impossible to travel safely to the destination as agreed in the package travel contract.” The adoption of the new Travel Directive has thus introduced a fundamentally new definition, which was not previously available in the rules governing organised travel, namely unavoidable and extraordinary circumstances. This definition was inspired by international conventions already existing before the adoption of the Travel Directive and by European Union legislation on passengers’ rights ( Council Decision 2001/539/EC of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention); Council Decision 2013/103/EU of 16 June 2011 on the signing and conclusion of the Agreement between the European Union and the Intergovernmental Organisation for International Carriage by Rail on the Accession of the European Union to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol  of 3 June 1999; Council Decision 2012/22/EU of 12 December 2011 concerning the accession of the European Union to the Protocol of 2002 to  the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, with the exception of Articles 10 and 11 thereof Regulation (EC) No 261/2004 of the European Parliament and of the Council establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, etc.), which have used a unified category of extraordinary circumstances ). A similar term  is also used in the Travel Directive, so the term “unavoidable andextraordinary circumstances” used in the Lithuanian translation of the Travel Directive is  similar in content to the unified term “extraordinary circumstances”. Article 4 of the Travel Directive provides that Member States shall not maintain in force or adopt in their national law provisions derogating from those laid down in this Directive, including more or less stringent provisions, which ensure an unequal level of protection for travellers, unless otherwise provided for in this Directive itself. In other words, the same definition of extraordinary circumstances should have been transposed when transposing the provisions of the Travel Directive . Notwithstanding this, Article 6.750(4)(3) of the Civil Code of the Republic of Lithuania established the definition of force majeure rather than extraordinary circumstances. The legal doctrine takes an analogous position with regard to the above definitions and their content (Fuehrich/Staudinger. Reiserecht, 2019, 8. Auflage, Verlag C.H.Beck, p.462; Bergmann/Blankenburg, NJW 2019, 3678).

The national court in the present case also raised the question whether the definition of extraordinary circumstances is substantially different from the concept of force majeure. It has already been mentioned that the legal doctrine takes the position that the definition of force majeure has been changed to extraordinary circumstances only in order to unify the terms used in international conventions and in European Union legislation on passenger rights. Recital of point 31 of the Travel Directive identifies as exceptional circumstances, for example, war, other serious security problems such as terrorism, serious risks to human health such as the outbreak of a serious disease at the place of destination, or natural disasters such as floods or earthquakes, or meteorological conditions which make it impossible to travel safely to the place of destination. As can be seen from the examples given in the Travel Directive, these are traditional circumstances of unstoppable force (force majeure), as defined in Article 6.212 of the Civil Code of the Republic of Lithuania. The definition of unavoidable and extraordinary circumstances, according to the case-law of the Court of Justice(CJEU judgment in Case C-549/07, judgment in Case C-402/07 and C-432/07, judgment in Case C-501/17, etc.), is broader than that of force majeure, encompassing not only the external events referred to above, but also the internal events that are most often encountered by companies in the course of their business (e.g., strike etc.) (Bergmann/Blankenburg, NJW 2019, 3678; Loew, NJW 2020, 1252-1253; Tonner, MuenchKomm/BGB (8.Aufl.), 2020, Paragr. 651h, 34).  Thus, it is reasonable to conclude that the concepts of force majeure  ( Article 6.212 of the Civil Code of the Republic of Lithuania) and unavoidable and extraordinary circumstances (Article 6.750(4)(3) of the Civil Code of the Republic of Lithuania) used in Lithuanian national law can be equated when they include, among others, the classic external events of force majeure, which are also referred to in paragraph 31 of the recital of the Travel Directive .

It should also be noted that Advocate General Laila Medina, in her opinion of 21 September 2023 in the case c-299/22, in response to a question posed by the Supreme Court of Lithuania on the relationship between unavoidable and extraordinary and force majeure circumstances, stated that“<…> despite the fact that there is no reference to force majeure in this Directive, this concept of “unavoidable and extraordinary circumstances” concretises the concept of force majeure in this Directive, and this is a comprehensive implementation of the concept for the purposes of the Directive” (p. 29 of the conclusion). The Court of Justice took a similar view in its judgment of 8 June 2023 in Case No c-407/21 UFC- Que choisir and CLCV (paragraphs 54, 56 of the judgment).

The case thus reaffirmed the important point in legal doctrine that the extraordinary circumstances  are a comprehensive  implementation of the concept of force majeure.

 

On the first question referred for a preliminary ruling

 It should be recalled that dominant position view in the legal doctrine was that the meaning of recommendations is not the subject of positive law but of legal doctrine, where recommendations are seen only as the main and most important indicators of extraordinary circumstances ( Schmidt. Rechtsfragen zur Corona Krise, 2020, 2.Auflage, Verlag C.H.Beck, s. 198, Fuehrich/Staudinger etc). The importance of the recommendations as the main and most important indicator of extraordinary circumstances is due to the fact that it can often be difficult for travellers to assess and identify  from an ex ante perspective that the circumstances that have arisen will have a significant impact on the performance of the package, and therefore it has been recognised by legal scholars that the European Union-wide assessment of travel security is an important, but not the only, indicator of extraordinary circumstances.

The Travel Directive contains a non-exhaustive (illustrative) list of circumstances which have a significant impact on the performance of the package, such as terrorism, a serious risk to human health such as the outbreak of a serious disease at the place of destination, or natural disasters such as floods or earthquakes, or meteorological conditions which make it impossible to travel to the destination safely (recital o point 31 of the Travel Directive). However, the Travel Directive deliberately does not refer to specific criteria (indicators), giving them legal significance for the purpose of establishing the existence of extraordinary circumstances. This is also the position of the European Commission in its report COM(2021)90 final, p. 5.2.3, where it states that <…> the Directive itself is silent on the legal significance of a travel warning or advisory issued by governments <…>”. In the absence of such a regulation in the Travel Directive itself, the procedures for making recommendations by the competent authorities of the Member States binding are also not enshrined in domestic law. Notwithstanding this, the  right of travellers under the Travel Directive to terminate an organised package travel contract without payment of a cancellation fee can effectively be exercised  by determining the existence of extraordinary circumstances not only on the basis of recommendations issued by the competent authorities of the Member States, but also on the basis of various factual indicators of special circumstances (recommendations, decisions of the WHO, factual data from the destination, etc).

Therefore, although, as the Court of Justice pointed out in its preliminary ruling, the finding of unavoidable and unusual circumstances does not depend on the publication by the competent authorities of an official recommendation to travellers not to go to the destination in question, those recommendations, as one of the indicators of unavoidable and unusual circumstances, play an important role for travellers, as average consumers, in deciding whether or not they have acquired the right to cancel the travel contract for the journey without having to pay termination charges (point 37 of the judgment).

In the light of all the foregoing, the answer to the first question is that Article 12(2) of Directive 2015/2302, read in the light of point 12 of Article 3 thereof, must be interpreted as meaning that “the finding that “unavoidable and extraordinary circumstances”, within the meaning of those provisions, have arisen at or in the immediate vicinity of the place of destination of a journey is not subject to the condition that the competent authorities have issued an official recommendation advising travellers against travelling to the area concerned or an official decision classifying that area as a “risk area“.

 

On the second question referred for a preliminary ruling

As can be seen from the disposition of Article 12(2) of the Travel Directive, a significant impact on the performance of the package is not necessarily linked to objective impossibility. The Court of Justice has also stated that “<…> while any lack of conformity affecting the performance of a package in progress cannot justify the termination of the corresponding travel contract without charge, the fact remains that a lack of conformity involving poor performance of that package may be sufficient to give rise to such termination, provided that that lack of conformity “substantially affects” the performance of that package, in accordance with Article 13(6) of Directive 2015/2302.(point 51 of the judgment).

How and to what extent and in what form the “substantial affect” on the implementation of the package is manifested is a question of fact to be analysed in the context of the specific facts. Thus, health risks can also be considered an extraordinary circumstance, but not in all cases. In assessing whether a “health risk” can be considered an unavoidable and extraordinary circumstance, it is essential to distinguish between the traveller’s subjective and abstract suspicion, fear, prejudice and the objective reality. In order for a traveller to exercise the right of cancellation without payment of a cancellation fee, there must be a realistic likelihood of unavoidable and extraordinary circumstances at the place of destination which have a “substantially affect on the performance of that package “or on the “transportation of passengers to the place of destination”.   On this point one should agree with Philipp Binger. Der entschaedigungslose Ruecktritt gem. parag.651h Abs.3 BGB in der Corona- Pandemie//ReiseRecht aktuell, 5/2021, p. 208), who sets out the main factors for concluding that a health risk has been proven and is considered to be an “unavoidable and extraordinary circumstance”:

• The number of illnesses at the place of destination compared to the traveller’s place of departure has increased significantly between the time of the conclusion of the contract and the termination of the contract (the factor of the number of people getting ill). It should be noted that recital 31 of the Travel Directive does not refer to an illness of any kind, but to an outbreak of a serious illness;

• At the place of destination, after the conclusion of the contract, the authorities took effective action which effectively restricted access to places of interest, banned public transport, closed places of assembly, schools, etc. (factor of effective restrictions);

• The authorities at the place of destination have taken political action which, without specifying a specific timeframe, is planned to restrict access to the destination or to the country as a whole, to restrict access to the country, to tighten access procedures, etc. (political factor).

It is clear that the possibility of avoiding the consequences is a question of fact, depending on the specific facts of the case, to be determined by the courts of lower instances. It is interesting to note that the national courts of first instance and appeal that heard the case found that the evidence in the case did not justify treating the circumstances as force majeure, since:

• on 2020-02-27, i.e. on the date of termination of the contract, there was no outbreak of any serious illness in Lithuania or the United Arab Emirates that would have made it impossible to reach the destination;

• No de facto and/or political restrictions have been imposed in Lithuania or the United Arab Emirates;

• According to the World Health Organisation, on 2020-02-10, the date on which the Claimant entered into the package tour contract, the number of illnesses in the UAE was only 12, whereas on the date of cancellation the number of illnesses was 23 (https://www.who.int/countries/are/), e. the number of illnesses remained virtually unchanged, and the numbers referred to on the date of cancellation could not in any way be regarded as an outbreak of a serious disease;

• The applicant purchased the trip from the defendant on 10 February 2020, whereas the letter from the Ministry of Foreign Affairs shows that the information on the security measures had already been made public on 8 January 2020, and there were no new recommendations between the time the applicant purchased the trip on 10 February 2020 and the time he terminated the contract. Thus, there were no changes and no major risks between the purchase of the trip and its cancellation, and the situation and the risk information remained unchanged.

It is important to note that, according to Article 19(1) of the Treaty on European Union, the mission of the Court of Justice of the European Union is to ensure compliance with the law by interpreting and applying the Agreements (https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:lt:PDF).  In other words, the Court of Justice uses the general principles of EU law to fill gaps in EU primary and secondary law, interpreting EU law provisions and national law provisions relating to EU law, but does not analyse or assess the specific facts of the case before the national court. We therefore consider that the Court of Justice’s conclusion that “<…>a health crisis, such as the spread of COVID‑19, may, in view of the serious risk it poses to human health, be regarded as having [significant effects on] the performance of the package, or <…>the carriage of passengers to the destination, within the meaning of the first sentence of Article 12(2) of Directive 2015/2302, irrespective of the fact that it is not necessarily such as to make such performance objectively impossible.” (Judgement p. 53), is to be assessed as general in nature and does not eliminate the national court’s obligation to assess it in the light of the facts of the case (it has already been pointed out that the Court’s summary conclusions in Case c-299/22 concern a health crisis and the outbreak of COVID-19, whereas the national court in the present case is dealing with a situation which pre-dates the declaration of a quarantine and a global pandemic).

Together with the analysed case No. c-299/22, which was joined with case No. c-584/22, it was held that “in order to determine whether “unavoidable and extraordinary circumstances” have arisen which has “[significant effects on] the performance of the package, or <…>the carriage of passengers to the destination” within the meaning of this provision, it is only necessary to take into account the situation prevailing at the time of the cancellation by the traveller. Thus, irrespective of the conclusions of the Court of Justice in case c-299/22 on the outbreak of COVID-19 and the health crisis, the circumstances on the date of termination of the contract are to be assessed in the cases before the national courts.

The Court of Justice has stated, inter alia, that “for the purposes of assessing the condition relating to the existence of such effects, of personal factors relating to the individual situation of travellers, such as the fact of travelling with young children or of belonging to a higher-risk group, it should be emphasised that those consequences must be established objectively in the same way as the circumstances which caused them, referred to in paragraph 31 of this judgment.” (Judgement p. 54). The Court of Justice has also stated that “ in accordance with the objective nature of those effects, referred to in paragraph 54 of this judgment, it is not sufficient for the traveller concerned, when he or she wishes to exercise his or her right to terminate his or her package travel contract without paying a termination fee, to rely on purely subjective assessments or fears” (Judgement p. 69).

Thus, although the Court of Justice has clarified that subjective factors relating to the individual situation of the travellers may also be relevant for the assessment of whether the circumstances have a significant (essential/material) impact on the performance of the contract, the claimant, when bringing an action for the reimbursement of the amount paid for the package, must be based on objective circumstances relating to the situation of the travellers. For example, in the case heard before the national court, the contract for the organised tourist trip, the beneficiaries of which are also the Claimant’s children, was concluded on 2020-02-10, when the information on the need to take additional security measures had already been made public on 2020-02-08.  In presence of such circumstances, and in the absence of any objective evidence in the case that the circumstances have had a material impact on the individual situation of the travellers, the individual situation of the travellers would be of no material significance for the purpose of assessing the validity of the termination of the contract.

The Court of Justice has also clarified that the assessment of the likelihood and magnitude of the effects within the meaning of that provision must be made from the perspective of the average traveller who is sufficiently informed, reasonably observant and discerning, a criterion which is applied in other areas of European Union law concerning consumer protection (see Judgement of 3 March 2020,  in case C‑125/18 Gómez del Moral Guasch, EU:C:2020:138, paragraph 51).

In the light of all the above-mentioned, the Court of Justice, in its answer to the second question referred for a preliminary ruling, has clarified that the concept of “unavoidable and extraordinary circumstances that have significant effects on the performance of the package, or on the carriage of passengers to the destination” is not confined to the circumstances, which make it impossible to carry out the package, but also circumstances which, without preventing such a carrying out, make it impossible to carry out the package without endangering the health and safety of the travellers concerned, taking into account, where appropriate, the personal factors relating to the individual circumstances of those travellers. Such effects must be assessed from the perspective of the average traveller, who is sufficiently informed, reasonably observant and discerning on the date of termination of the relevant package travel contract.

 

On the third question referred for a preliminary ruling

Recital of p. 31 of the Travel Directive provides for one of the unavoidable and extraordinary (special) circumstances – an outbreak of serious illness at the place of destination. Obviously, the seriousness of the disease and the assessment of the outbreak is a question of fact.  It should be noted that when the Travel Directive was drafted, the global pandemic COVID-19 had not yet been recorded and the special circumstance to be analysed is an outbreak of the disease at the place of destination compared to the disease in the country of departure. For example, the facts of the present case are that, according to the World Health Organisation, on 10 February 2020, the date on which the Claimant entered into the package travel contract, there were only 12 illnesses in the UAE, and on the date of the cancellation, there were 23 (https://www.who.int/countries/are/). When assessing the number of cases ex ante, the number of cases cannot be considered as an outbreak of disease, nor as a significant change since the contract was concluded. In other words, the circumstances that existed at the time of the conclusion of the contract by the Claimants were hardly different from the circumstances that existed at the time of the termination.  The existence of these circumstances (foreseeability) before the conclusion of the contract eliminates the right of the traveller to cancel the contract without payment of a fee due to an outbreak of illness at the place of destination.

 The Court of Justice has similarly stated that ‘<…> that objective does not require protecting travellers against risks which, on the date of conclusion of the package travel contract, were already known to them or were foreseeable for them and which they therefore accepted for the purposes of their journey.” (Judgement p. 78).  “Thus, circumstances already known to the traveller concerned or foreseeable for him or her on the date of conclusion of the package travel contract cannot be the basis for exercising the right to terminate such a contract without paying a termination fee, provided for in Article 12(2) of Directive 2015/2302.” (Judgement p. 79).

In the proceedings before the National Court, the Claimant states that on 2020-02-27, the date of termination of the contract, information appeared in the media that guests at a hotel in the UAE had been diagnosed with COVID-19 infection and on 2020-02-28, the “Reuters” news agency published information about the closure of two hotels in Abu Dhabi due to quarantine. By the end of February 2020, information on major developments related to the spread of COVID-19, both in Lithuania and globally, started to increase rapidly.  When assessing the information of 2020-02-28 ex ante, it was not yet known to the Claimant, as already mentioned, the existence of exceptional circumstances is assessed on the date of the termination of the contract, which is established in the case file to have taken place on 2020-02-27. It is considered that the single case of COVID-19 infection recorded on 2020-02-27 in a hotel unrelated to the hotel where the Claimant had purchased accommodation cannot be considered as a substantial change of situation.

It is also interesting, that the Court of Justice has also noted that it cannot be excluded that the situation may have changed substantially since the conclusion of the contract and differ from the situation of which the traveller concerned was aware or could reasonably have foreseen at the time of the conclusion of the contract, and that, in the event of such a changed situation, the traveller would be entitled to terminate the package travel contract without having to pay a cancellation fee.

In interpreting the third question referred for a preliminary ruling, the Court of Justice states that a situation of which the traveller concerned was already aware or could have foreseen on the date of conclusion of the package travel contract cannot be referred to by the traveller as an “unavoidable and extraordinary circumstance” within the meaning of that provision; it must nevertheless be borne in mind that, given the fluid nature of the situation, it may have changed substantially since the conclusion of the contract, resulting in a new situation which may in itself fall within the definition of “unavoidable and extraordinary circumstances” within the meaning of that provision.

 

On the fourth question referred for a preliminary ruling

Article 12(2) of the Travel Directive states that “<…> the traveller shall have the right to terminate the package travel contract before the start of the package without paying any termination fee in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination.“. Prior to the judgment of the Court of Justice in the present case, it was held in legal doctrine that the rule in question could not, by its construction, be interpreted extensively or as a gap in the law to be filled by the courts in their own competence while hearing cases, since the construction of the rule reflects the direct intention of the legislator to confer on the tourist such a right only in relation to the purpose of the journey (Philipp Binger. Der entschaedigungslose Ruecktritt gem. parag.651h Abs.3 BGB in der Corona- Pandemie//ReiseRecht aktuell, 5/2021, p. 208).

However, the Court of Justice, which heard the case, interpreted Article 12(2) of the Travel Directive extensively (broadly), stating that there is no geographical limitation in that provision as regards the place where such circumstances must give rise to such an effect in order to be taken into account. On this basis, it follows that if the effects caused by unavoidable and extraordinary circumstances extend beyond the place of destination and reach, inter alia, the place of departure or return, or intermediate stops and travel connections, this may affect the performance of the package concerned and therefore such circumstances must be taken into account for the purposes of Article 12(2) of Directive 2015/2302.

In answer to the fourth question referred for a preliminary ruling, the Court of Justice states that Article 12(2) of Directive 2015/2302 must be interpreted as meaning that, for the purposes of determining whether unavoidable and extraordinary circumstances occurring at the place of destination, or in the immediate vicinity of it, have a ” significant effect on the performance of the package or <…> significant effect on the carriage of passengers to the destination”, account may also be taken of the effects occurring at the place of departure and at points connected with the departure for and return from the journey in question, in so far as they affect the performance of the package.

 

Edmundas Rusinas