Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 21 September 2023(1)
Joined Cases C‑414/22 and C‑584/22
DocLX Travel Events GmbH
v
Verein für Konsumenteninformation
(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))
and
QM
v
Kiwi Tours GmbH
(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))
(Reference for a preliminary ruling – Package travel and linked travel arrangements – Directive (EU) 2015/2302 – Termination of the package travel contract – Unavoidable and extraordinary circumstances – Events occurring after the termination but before the performance of the package – Foreseeability at the moment of termination of the travel contract)
I.      Introduction
1.        On 11 March 2020, the World Health Organisation (WHO) declared the coronavirus of COVID-19 a pandemic and warned that the world had ‘never before seen a pandemic sparked by a coronavirus’. (2) The ‘suddenness, scale and severity’ (3) of the pandemic was reflected in the
adoption of unprecedented restrictive measures on a global scale, which took a heavy toll in all fields of social and economic activity. The travel
industry was one of the sectors most seriously affected.
2.        In that context, many travellers claimed the right to terminate their package travel contracts without paying any termination fee. They did this even prior to the pandemic
being officially declared and the closing of borders, invoking the existence of ‘unavoidable and extraordinary circumstances’ within the meaning of Article 12(2) of Directive (EU) 2015/2302. (4) The present Joined Cases – together with Case C‑299/22,
Tez Tour,
in which my Opinion is being delivered today – raise various issues concerning the interpretation of that provision. One of those issues relates to the determination of the point in time which is decisive for the establishment of the right to
terminate the package travel contract without incurring the obligation to pay any
termination fee. The cases invite
a reflection on how best to achieve the appropriate balance sought by Directive 2015/2302 between a high level of consumer protection and the competitiveness of businesses as the world becomes a more uncertain and unpredictable place.
II.    Legal Framework
A.      EU law
3.        Recital 31 of Directive 2015/2302
states:
‘(31)      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.’
4.        Article 3(12) of Directive 2015/2302, entitled ‘Definitions’, reads:
‘For the purposes of this Directive, the following definitions apply:
…
(12)      “unavoidable and extraordinary circumstances” means a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken [.]’
5.        Article 12
of
Directive 2015/2302, entitled ‘Termination of the package travel contract and the right of withdrawal before the start of the package’, provides, in paragraphs 1 to 3:
‘1.      Member States shall ensure that the traveller may terminate the package travel contract at any time before the start of the package. Where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. The package travel contract may specify reasonable standardised termination fees based on the time of the termination of the contract before the start of the package and the expected cost savings and income from alternative deployment of the travel services. In the absence of standardised termination fees, the amount of the termination fee shall correspond to the price of the package minus the cost savings and income from alternative deployment of the travel services. At the traveller’s request the organiser shall provide a justification for the amount of the termination fees.
2.      Notwithstanding paragraph 1, 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. In the event of termination of the package travel contract under this paragraph, the traveller shall be entitled to a full refund of any payments made for the package, but shall not be entitled to additional compensation.
3.      The organiser may terminate the package travel contract and provide the traveller with a full refund of any payments made for the package, but shall not be liable for additional compensation, if:
…
(b)      the organiser is prevented from performing the contract because of unavoidable and extraordinary circumstances and notifies the traveller of the termination of the contract without undue delay before the start of the package.’
6.        Article 23 of Directive 2015/2302, entitled ‘Imperative nature of the Directive’, states, in paragraphs 2 and 3:
‘2.      Travellers may not waive the rights conferred on them by the national measures transposing this Directive.
3.      Any contractual arrangement or any statement by the traveller which directly or indirectly waives or restricts the rights conferred on travellers pursuant to this Directive or aims to circumvent the application of this Directive shall not be binding on the traveller.’
B.      National law
1.      Austrian law
7.        Paragraph 3 of the Pauschalreisegesetz (Law on Package Travel, BGBl. I, 2017/50) states:
‘In
so
far as agreements deviate from the provisions of the present Federal Law to the detriment of the traveller, they shall be without effect.’
8.        Article 10(2) of the Law on Package Travel provides:
‘Without prejudice to the right of termination provided for in subparagraph 1, the traveller may terminate the package travel contract before the start of the package without paying any compensation 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. If the traveller terminates the package travel contract under this subparagraph, he or she shall be entitled to a full refund of any payments made for the package, but shall not be entitled to additional compensation.’
2.      German law
9.        Paragraph 651h of the Bürgerliches Gesetzbuch (Civil Code), entitled ‘Rescission before the start of the package’, states:
‘1.      Before the start of the package, the traveller may rescind the contract at any time. If the traveller rescinds the contract, then the organiser no longer has a claim to the price agreed for the package. However, the organiser may demand reasonable compensation.
2.      Reasonable standard compensation amounts may be specified in the contract, also by way of standard contractual terms, that are based on the following criteria:
1.      the period between the declaration of rescission and the start of the package;
2.      the expenses the organiser is expected to save; and
3.      the expected gains resulting from an alternative deployment of the travel services.
Where no standard compensation amounts are specified in the contract, the amount of the compensation is determined by the price of the package less the value of the expenses saved by the organiser as well as less what the organiser gains by deploying the travel services otherwise. At the request of the traveller, the organiser is under the obligation to cite the grounds for the amount of the compensation.
3.      By way of derogation from subsection 1 sentence 3, the organiser may not claim
compensation if unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity significantly affect the performance of the package or the carriage of passengers to the destination. Circumstances are unavoidable and exceptional within the meaning of this subtitle if they are not subject to the control of the party who invokes such a situation and if their consequences could not have been avoided even if all reasonable measures had been taken.’
III. Succinct presentation of the facts and procedure in the main proceedings and the questions referred
A.      Case C‑414/22
10.      In January 2020, FM,
a consumer, booked a school-leavers’ trip to Croatia with the defendant,
DocLX, a tour operator. The trip was to take place from 27 June to 3 July 2020. It included transport to the destination and back to the place of departure, and
was designed as a festive trip involving a large number of young participants and lively celebrations.
11.      The total price of the package tour was EUR 787, which FM paid in full in advance.
12.      On 13 March 2020, the Austrian Ministry of Foreign Affairs issued a level-4 travel warning for all countries worldwide, urging to postpone any travel that was not absolutely necessary or making use of cancellation options.
13.      On 21 April 2020, DocLX informed FM that the free
of
charge termination of the package was not possible at that point in time and would be possible only on the basis of external circumstances, such as a level-6 travel warning, and even then only seven days before the planned start of the package. However, DocLX offered the termination of the trip for a reduced termination fee, which FM accepted. DocLX subsequently reimbursed FM for the deposit he had paid, while withholding an amount of EUR 227.68 as cancellation costs.
14.      The package travel was ultimately not realised.
15.      The Verein für Konsumenteninformation (Association for Consumer Information; ‘the Verein’), an Austrian consumer association, was assigned FM’s claim for reimbursement of the termination fee. That claim
sought the payment, from the organiser, of the withheld amount of EUR 227.68, arguing that, at the time of the agreement on cancellation, FM was entitled to terminate the travel contract free of charge. It submitted that the agreement by
which the traveller
had cancelled his trip
for a reduced
termination fee should be considered as ineffective under Article 10(2) of the (Austrian) Law on Package Travel
as it was less favourable for him.
16.      DocLX opposed the claim, arguing that it was not yet foreseeable in April 2020 whether unavoidable and extraordinary circumstances would actually make it impossible to perform the package in June 2020. Consequently, it submitted that there was no possibility of termination free of charge at the time of the agreement concerning the amount of the termination fee (or the declaration of termination).
17.      While the court of first instance dismissed the Verein’s claim, essentially following DocLX’s arguments, the court of appeal reversed that judgment and upheld the claim, holding that,
at the time of termination, a school-leavers’ trip such as the one agreed could not take place due to the COVID-19 pandemic.
18.      The referring court notes that the outcome of the dispute in the main proceedings depends on the interpretation of Article 12(2) of Directive 2015/2302. More specifically, it depends on whether,
in order to establish the right to terminate the travel contract free of charge, it is sufficient that unavoidable and extraordinary circumstances actually occurred after the termination of the contract – considered ex post facto –
by the time of the start of the package (at the latest possible time of termination of the travel contract) or whether
it is decisive that such circumstances, considered ex ante, were likely or to be expected.
19.      The referring court notes that Directive 2015/2302 does not provide for a specific threshold of probability for the occurrence of the ‘unavoidable and extraordinary circumstances’ or time limits for the traveller to terminate the contract free of charge. It considers that both an ex post
and an ex ante assessment of those circumstances can be envisaged.
According to the ex post assessment, a traveller should always be entitled to terminate a package travel contract free of charge if those circumstances do in fact occur subsequently and would have significantly affected or made it impossible to perform the package contract which the traveller terminated due to those circumstances. In that case, it would not matter if the traveller made an incorrect ex ante assessment of the situation and terminated the contract ‘too early’.
By contrast, according to the ex ante assessment, the only decisive factor
is the objective situation at the time of the declaration of termination. In that case, any subsequent improvements in the risk situation would not be detrimental to the right of termination. However, if the traveller makes an incorrect (‘overly cautious’) assessment of the risk situation at the time of termination, he or she would still be obliged to pay cancellation fees, even if subsequently it does in fact become unreasonable or impossible to perform the package.
20.      In those circumstances, the Oberster Gerichtshof (Supreme Court, Austria) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1)      Must Article 12(2) of [Directive 2015/2302] be interpreted as meaning that the traveller – irrespective of the time of his or her declaration of termination – is in any event entitled to terminate a package free of charge if the unavoidable and extraordinary circumstances significantly affecting the package did in fact occur at the time of the (scheduled) start of the package?
(2)      Must Article 12(2) of [Directive 2015/2302] be interpreted as meaning that the traveller is already entitled to terminate a package free of charge if the occurrence of unavoidable and extraordinary circumstances was to be expected at the time of the declaration of termination?’
21.      Written observations were submitted by the applicant in the main proceedings, the Austrian and Greek Governments as well as the European Commission. The decision to join proceedings under Article 54 of the Rules of Procedure in the present case and in Case C‑584/22
was taken on 28 March 2023. The parties in the main proceedings, the Greek Government and the European Commission presented oral argument at the joint hearing, which
was held for Cases
C‑414/22 and C‑584/22,
together with Case C‑299/22,
Tez Tour, on 7 June 2023.
B.      Case C‑584/22
22.      In January 2020, QM booked a trip to Japan for himself and his wife with the tour operator Kiwi Tours from 3 to 12 April 2020. The total price of the package tour was EUR 6 148, as part of which QM paid a deposit of EUR 1 230.
23.      Following a series of measures adopted by the Japanese authorities in relation to the coronavirus, QM, by letter of 1 March 2020, terminated the package contract due to the health risk posed by the coronavirus.
24.      Kiwi Tours then issued a termination invoice for an additional amount of EUR 307, which QM paid.
25.      On 26 March 2020, Japan adopted an entry ban. QM then requested reimbursement of the sums paid, which Kiwi Tours refused.
26.      While the Amtsgericht (Local Court, Germany) ordered Kiwi Tours, at QM’s request, to reimburse the sums paid, the Landgericht (Regional Court, Germany), on appeal by Kiwi Tours, dismissed that claim. The Landgericht (Regional Court) observed that, at the time of the termination of the contract, it was not possible to consider that there were unavoidable and extraordinary circumstances.
On the basis of an ex ante assessment, QM was therefore not entitled to terminate the contract without having to pay a termination fee.
27.      QM brought an appeal on a point of law
before the Bundesgerichtshof (Federal Court, Germany) against the judgment of the Landgericht (Regional Court). The referring court notes that the court of appeal was correct to consider that the conditions governing the right to terminate the contract free of charge are met when it is possible to assess, even before the start of the package, that
unavoidable and extraordinary circumstances exist. That evaluation entails the assessment of whether the extraordinary circumstances give rise to a substantial likelihood that the package or the carriage of passengers to the destination will be significantly affected. According to the referring court, the significant effect is found to exist when the performance of the package would entail significant and unreasonable risks in connection with legally protected interests of the traveller.
28.      Nevertheless, the referring court considers that the assessment made by the court of appeal with regard to the existence of such a risk in the present case is vitiated by errors of law. The appellate court ought to have addressed the question as to whether the unusual nature and quantity of the restrictive measures constituted, already at the time of termination of the contract, sufficient indications that there was a significant risk of infection by the virus. Thus it cannot
be ruled out that, by making a correct assessment of that risk, the court of appeal would have come to the conclusion that,
at the time of termination of the contract,
a trip to Japan involved serious and grave health risks which a prudent traveller would not reasonably be expected to take.
29.      However, the referring court recalls that, according to German procedural law, it may not rule itself on the substance in that respect and it would in principle
have to refer the case back to the court of appeal. By contrast, it could itself decide on the appeal without making any further findings of facts and dismiss the appeal if circumstances which arose only after the termination are also relevant for the purpose of assessing
the right to termination without charge. Indeed, it is common ground that the trip to the travel destination could not have been carried out because of the entry ban imposed by Japan on 26 March 2020 in connection with the spread of the coronavirus.
30.      The referring court is inclined to take the view that account must be taken of circumstances which arose only after the termination. In that regard, it states, first, that Article 12(2) of Directive 2015/2302 formally provides for a case of termination distinct from that of paragraph 1 of that article, which applies when, contrary to the traveller’s assessment, there are no unavoidable and extraordinary circumstances occurring at the time of termination and significantly affecting the performance of the package. Article 12(2) is, in essence, relevant only for the legal consequences of the termination, which depend not on the grounds on which the traveller relied to terminate the travel contract, but only on the actual existence of circumstances which have a significant impact on the performance of the journey.
31.      Secondly, the referring court considers that the purpose of the termination fee would lead to the same conclusion, irrespective of whether it is to be regarded as a compensation-like payment or as a substitute for the price of the package. In the event that the termination fee is to be regarded as a compensation-like payment, the referring court recalls that, in principle, when assessing damage for which compensation is payable, the entire development of the damage from the time of the event giving rise to the claim until the final decision on the claim must be taken into account. This would militate in favour of presuming an absence of damage for the organiser in cases where it becomes apparent after termination that the performance of the package is significantly affected and the organiser would therefore have been obliged to repay the full price of the package even if the traveller had not terminated the contract. In the event that the termination fee is to be regarded as a substitute for the price of the package, in the sense of a payment which takes the place of the price of the package originally owed, subsequent developments leading to a loss of entitlement of the organiser to the price of the package must likewise not be disregarded. Indeed, according to the referring court, the entitlement to the substitute payment exists only
in so far as it would have existed even if the traveller had not terminated the travel contract.
32.      Finally, the referring court notes that consumer protection considerations should militate in favour of taking into account subsequent developments. In its view, a high level of protection requires that, even in the event of an early termination of the travel contract, the traveller should not be obliged to make payments for a travel arrangement
whose performance is subsequently significantly affected. Otherwise, in situations of uncertainty, travellers could be dissuaded from making timely use of their right to terminate the travel contract, although early termination allows for the prospect that the termination fee to be paid will in fact be low. According to the referring court, this reduces the risk not only for the traveller but also for the organiser, which gains clarity at an early stage and has more time to save costs or to deploy travel services in an alternative manner. By contrast, making the right of cancellation free of charge dependent on the time of cancellation would encourage speculative behaviour on the part of the organiser in particular. In the view of the referring court, it might lead the organiser to refrain from terminating the travel contract until shortly before the start of trip in order to cause as many travellers as possible to terminate the contract in a way that would be financially more favourable for the organiser.
33.      The referring court considers that the abovementioned arguments are not called into question by the fact that the maximum period for reimbursement amounts to
14 days after the package travel contract is terminated, as provided for in Article 12(4) of Directive 2015/2302. More specifically, that court takes the position that it
cannot be inferred from that provision that the amount of the termination fee must be definitively established at that point in time and that subsequent claims for additional payment or repayment are to be excluded.
34.      In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Is Article 12(2) of [Directive 2015/2302] to be interpreted as meaning that the assessment of the justification of the termination must be based solely on such unavoidable and extraordinary circumstances as have already occurred at the time of termination, or as meaning that it is also necessary to take into account unavoidable and extraordinary circumstances that actually occur after the termination but before the planned start of the journey?’
35.      Written observations were submitted
by QM, the Greek Government and the European Commission. The parties in the main proceedings, the Greek Government and the European Commission presented oral argument at the joint hearing, which was held for Cases
C‑414/22 and C‑584/22, together with Case C‑299/22,
Tez Tour, on 7 June 2023.
IV.    Assessment
36.      By the two questions in Case C‑414/22 and the single question in Case C‑584/22, the referring courts ask, essentially, whether Article 12(2) of Directive 2015/2302 is to be interpreted as meaning that the
assessment of the occurrence of unavoidable and extraordinary circumstances significantly affecting the performance of the package, which gives rise to the right of the traveller to terminate the package travel contract without paying any termination fee, has to be made only at the time of termination of the contract, or whether that provision should be interpreted as meaning that it is also necessary to take into account unavoidable and extraordinary circumstances that actually occur after the termination of the package contract
but before the start of the package travel.
37.      The referring court in Case
C‑414/22 takes the view that Article 12(2) of Directive 2015/2302 might suggest that the right to terminate the package contract
free of charge should always exist if the unavoidable and extraordinary circumstances do in fact occur subsequently and would have significantly affected or rendered impossible the performance of the package. However, that court takes the view that it can also be argued that only the objective situation at the time of the declaration of termination is decisive. The referring court in Case C‑584/22 considers that the assessment of whether there are significant and unreasonable risks in connection with the health or other legally protected interests of the traveller requires a prediction, with the relevant time period being prior to the start of the package contract. It considers, however, that circumstances arising after the termination of the package contract but before the envisaged travel can also be relevant for that assessment.
38.      It follows from the requests for a preliminary ruling that the main issue raised is whether there is an autonomous right to terminate the package travel contract based solely on the actual occurrence of the unavoidable and extraordinary circumstances significantly affecting the package at the date of travel.
39.      In that regard, as a preliminary point, it must be recalled that, as its title indicates,
Article 12 of Directive 2015/2302
governs the ‘termination of the package travel contract and the right of withdrawal before the start of the package’. Article 12(1) of that directive provides for the right of the traveller to terminate the package travel contract ‘at any time before the start of the package’. In that case, under that provision,
he or she ‘may be required to pay an appropriate and justifiable termination fee to the organiser’. Article 12(2) recognises the right of the traveller to terminate the package travel contract 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’.
40.      According to settled case-law, the interpretation of a provision of EU law requires that account be taken not only of the wording of that provision, but also of its context, the objectives pursued by the rules of which that provision is part and, where appropriate, its origins. In particular, regard should be had to, inter alia, the recitals of the EU act concerned, since they constitute important elements for the purposes of interpretation, which may clarify the intentions of the author of that act. (5)
41.      One possible interpretation of the wording of Article 12(2) of Directive 2015/2302 is that for the traveller to be entitled to terminate
the package travel contract free of charge, the significant effect on the performance of the package materialises or persists at the date of the travel package. That provision refers to the unavoidable and extraordinary circumstances ‘occurring at the place of destination’ and ‘significantly affecting the performance of the package’ using the present tense. The Austrian Government and the European Commission have nevertheless observed that recital 31 of the directive uses the future tense
(in its English version) when it states that the right to terminate without paying any termination fee arises ‘where unavoidable and extraordinary circumstances will significantly affect the performance of the package’ (my emphasis). That would indicate that the entitlement to a termination of the package travel contract free of charge depends on a prospective evaluation of the situation by the traveller at the moment of termination of the contract.
42.      Irrespective of the tense used in Article 12(2) of Directive 2015/2302 and in recital 31 of that directive, it must be pointed out that, as I observe in my Opinion in Case C‑299/22 delivered today, the right to terminate the package travel contract without paying any termination fee arises ‘before the start of the package’. The use of the preposition ‘before’ indicates that there is a time lapse between the decision to terminate the package travel contract and the start of the package. The decision to terminate the package according to Article 12(2) is therefore prospective. It relies on a forecast or
ex ante assessment of the occurrence of ‘unavoidable and extraordinary circumstances’ and of their significant effect on the performance of the package or, in the event that those circumstances have already occurred, on a forecast of the persistence of the significant effect on the package. As the Austrian Government argued, even if in a specific situation, it is already established, at the date of termination of the contract,
that those circumstances will occur at the date of the travel, the extent to which those circumstances will precisely affect the performance of the package will still have to be assessed.
43.      The ex ante assessment made by the traveller at the date of termination of the package travel contract implies, therefore, an assessment of the likelihood that the ‘unavoidable and extraordinary circumstances’
will have a significant effect on the performance of the package. That assessment must be guided by the exceptional nature of the right to terminate the package travel contract without having to pay a
termination fee. At the time of termination of the package travel contract, the traveller must reasonably expect that there is a sufficiently high probability that ‘unavoidable and extraordinary circumstances’ will significantly affect the performance of the package.
44.      It follows that the right of the traveller to terminate the contract without paying any termination fee, in accordance with Article 12(2) of Directive 2015/2302, can be acquired before the start of the package at the moment of termination of the package travel contract
on the basis of the reasonable foreseeability of the significant effect on the package. That acquired right cannot be extinguished due to subsequent events. As the Commission submits, it would be absurd if the traveller were able to terminate the contract due to unavoidable and extraordinary circumstances but would subsequently have to wait for those circumstances actually to occur on the date of travelling in order to be exempt from paying the termination fee. Conversely, if the traveller has no right to
a termination free of charge, such right
cannot be acquired retroactively after termination of the package travel contract
due to subsequent events.
45.      This interpretation is corroborated by the context of Article 12(2) of Directive 2015/2302. In that regard,
it follows from the preliminary observations above (6) that that
article recognises two distinct termination rights for the traveller. On the one hand, under Article 12(1) of the directive,
the traveller can ‘terminate the package travel contract at any time before the start of the package’. As the exercise of that right is not subject to the requirement to state the reasons for the termination, the traveller may be obliged, also under Article 12(1) of the directive, to pay an ‘appropriate and justifiable termination fee’. On the other hand, Article 12(2) of Directive 2015/2302 recognises a right to terminate the package travel contract without paying any termination fee ‘before the start of the package …
in the event of unavoidable and extraordinary circumstances occurring at the place of destination … and significantly affecting the performance of the package’.
46.      If it were to be accepted that the actual occurrence of the unavoidable and extraordinary circumstances is an autonomous condition for the recognition of the right to terminate free of charge, irrespective of the assessment made at the date of termination of the package travel contract,
the consequence of this is that it would lead to the recognition of
a new right to full reimbursement for all travellers independent from the grounds which they invoked
to terminate the contract. Indeed, if what matters is not what the situation was at date x (the date of termination of the contract) but what actually happened at a later date z (the date of travel), then a traveller who terminated the contract for personal reasons in accordance with Article 12(1) of Directive 2015/2302
should also be entitled to claim back the termination fee he or she had already paid
in the event of non-travel due to unavoidable and extraordinary circumstances.
47.      As the Greek Government essentially submitted, recognising the possibility of the traveller to terminate the package travel contract without paying any termination fee in the event of the actual occurrence of the unavoidable and extraordinary circumstances, irrespective of the situation at the moment of termination, would run counter
to the full harmonisation of the rights and obligations of the parties in the travel contract, as provided for in Article 4 of Directive 2015/2302.
48.      Indeed, the ‘ex post facto’
solution creates uncertainty as to
the point in time at which the rights and obligations of both parties to the contract have to be assessed. As the Greek Government submitted at the hearing, the contractual relationship ends for both parties when the traveller terminates the contract.
Since the EU legislature did not specifically provide that future events after the termination of the contract may influence the contractual relationship,
the termination of the contract must be decisive for the purposes of determining whether the prediction made by the traveller is reasonable.
It is at that point in time that the legal consequences of the exercise of the right to terminate the package travel contract
have to be assessed. If
the conditions of Article 12(2) are met, the legal consequence of the exercise of the right to terminate the contract is the obligation,
for the organiser, to give a full refund no later than 14 days after the package travel contract is terminated, in accordance with Article 12(4) of the directive.
49.      The promptness with which the full refund has to take place under
Article 12(4) confirms, as the Greek Government submitted, the interpretation according to which the moment of termination of the package travel contract is decisive for the determination of the rights and obligations of the parties. In that latter regard, I would like to observe
that the determination of the exact amount of the termination fee is different from the determination of the right of the traveller to terminate the contract without paying any termination fee. The traveller can terminate the contract only once and it is at the moment of termination that there must be certainty as to whether or not there is an entitlement to the full reimbursement of the payments made.
50.      Moreover, the right of the traveller to terminate the contract due to unavoidable and extraordinary circumstances is inextricably linked to the absence of liability to pay any termination fee. It is therefore not possible to split
in time the essential elements of the right provided for under Article 12(2) of Directive 2015/2302 and to accept that it is possible for the traveller to terminate the contract invoking unavoidable and extraordinary circumstances but that his or her right to full reimbursement depends on subsequent events.
51.      The ex post assessment of the unavoidable and extraordinary circumstances would also have an impact on the interpretation of the corresponding rights of the organiser. An obligation of the traveller to pay a termination fee in the event that the requirements of Article 12(2) of Directive 2015/2302
are not met corresponds to a respective claim of the organiser. As Kiwi Tours argued at the hearing, if the traveller’s right to terminate free of charge were to depend on subsequent events, that would have the consequence that the right of the organiser to the termination fee would be constituted or extinguished depending on the evolution of the situation occurring between the moment of the termination and the moment of intended travel.
52.      Furthermore, it must
be recalled that,
in accordance with Article 12(3)(b) of Directive 2015/2302,
the organiser may terminate the package travel contract and provide the traveller with a full refund without being liable for additional compensation if the organiser is ‘prevented from performing the contract because of unavoidable and extraordinary circumstances and notifies the traveller …
before the start of the package’ (my emphasis). If events occurring after termination
were to have an autonomous significance in terms of the determination of the rights and obligations of the parties, it would then have to be accepted that the organiser could terminate the contract before the start of the package but that its liability to pay additional compensation would depend on whether,
at the date of the intended travel,
its prediction was actually confirmed. Such a result would render the exoneration from liability of the organiser uncertain. Moreover, it would be contrary to the aforementioned full harmonisation by the EU legislature of the rights and obligations of the parties, including the issue of the liability of the organiser to pay additional compensation.
53.      It follows that the ex post assessment would render the position of the parties to the travel contract at the moment of termination of the contract uncertain and would be liable to frustrate the system of determination of the rights and obligations of the parties laid down in Article 12 of Directive 2015/2302. On the contrary, considering the ex ante assessment of the risk situation at the time of the termination of the contract as the only decisive criterion ensures legal certainty as to the consequences of termination. In other words, future events occurring before the intended travel but after the termination of the contract should not be capable of reversing an established legal position at the time of the termination of the contract.
54.      With regard to the objective of Article 12(2) of Directive 2015/2302, that provision recognises the right of the traveller to terminate the package contract without paying any termination fee already before the start of the package, under the conditions provided therein. As explained above, in order to be able to terminate the package before it starts, the traveller must make a prediction of the situation at the time of termination of the contract
with regard to the impact of the unavoidable and extraordinary circumstances on the performance of the package. If it were possible to assess the existence of the right to terminate the contract a posteriori, in view of what actually occurred at the date of travel, then it would not be possible to establish the right to terminate the contract free of charge before the start of the package. That right would have to be suspended until the date of travel. However, this would be contrary to what is provided for by Article 12(2) of the directive.
55.      The ex post approach, according to which events occurring after the termination of the contract but before the start of the package are decisive in relation to the right to terminate the contract, is not supported, in my view, by considerations related to a high level of consumer protection. In that regard, it must be recalled that, according to recital 5 of Directive 2015/2302, that directive aims to strike ‘the right balance between a high level of consumer protection and the competitiveness of businesses’. The ex post
approach is not more beneficial to the traveller
than the approach involving an
ex ante assessment. In that regard, it can be envisaged the situation in which a traveller makes a reasonable and justified evaluation of the risks of travelling
at the time of terminating the contract but then, against his or her initial prognostic assessment of the risk situation, finally the situation improves. The ex post approach would be more beneficial to the traveller only if it were to be accepted that subsequent events can be taken into account only if they confirm the assessment made by the traveller,
and not if they refute that assessment. However, it is clear to me that it would be contrary to what the EU legislature envisaged in Article 12(2) if it were possible to follow an interpretation of that rule only to the extent it leads
in one favourable direction for the traveller, while at the same time disregarding the possible unfavourable outcome of that interpretation.
56.      The referring court in Case C‑584/22 considered that the purpose of the termination fee, in particular, militates in favour of taking into account circumstances which occurred after the termination of the contract. In the view of the referring court, that would be the case irrespective of whether the termination fee is to be regarded as a compensation-like payment or as a substitute for the price of the package. The essential point which the referring court is making is that, if subsequent developments are to be taken into account, the organiser would be obliged to fully refund the traveller even if he or she had not terminated the contract. From that perspective, the organiser should not be entitled to any termination fee if it subsequently turns out that
there is no ‘damage’ or entitlement to such fee, since the unavoidable and extraordinary circumstances had actually occurred.
57.      As regards that argument, it should be recalled
that the termination fee is owed by the traveller when he or she exercises the right to withdraw before the start of the package ‘at any time’, within the meaning of Article 12(1) of Directive 2015/2302, and for any reason. The term ‘termination fee’ is neutral compared with the term ‘compensation’ (the German term for this being ‘Entschädigung’), which is used in the national transpositions of that
provision of the directive.
Under Article 12(1) of Directive 2015/2302, the package travel contract may specify reasonable termination fees based ‘on the time of the termination of the contract before the start of the package and the expected cost savings and income from alternative deployment of the travel services’. The description of what the
termination fee represents
is akin to a counterweight
to the right of the traveller to withdraw from the contract at any time. As the Commission essentially submits, this is a further instance of the balance which the directive intends to strike between the rights and obligations of the parties specified in
the travel contract.
58.      As I have argued above, irrespective of the legal nature of the termination fee,
accepting that no such
fee is owed if it subsequently appears  that the trip could not have taken place creates major legal uncertainty and would undermine the harmonisation of the rights and obligations of the parties specified in the travel contract.
59.      Nevertheless, the referring court in Case C‑584/22 warned
against the risk that there could be negative consequences if the obligation to pay a termination fee
is not based on whether the package was actually performed. That court took the view that, in uncertain situations, travellers could be discouraged from exercising their right to terminate the travel contract at an early stage and that they would be compelled to wait until further information becomes available or the organiser terminates the package on its own initiative.
60.      In that regard, I acknowledge that a prospective decision which the traveller is prompted to take on account of the occurrence of unavoidable and extraordinary circumstances is, by definition, connected with a situation of uncertainty. However, the level of uncertainty has to be taken into account when interpreting the conditions of the exercise of the right to terminate the travel contract under Article 12(2) of Directive 2015/2302.
That right does not require, as the Austrian Government essentially argued, that
the traveller be able to
affirm with absolute certainty that unavoidable and extraordinary circumstances will definitely occur and have a significant effect. As has already been pointed out, at the time of termination of the package travel contract, it is adequate that the traveller must reasonably expect that there is a sufficiently high probability  that the unavoidable and extraordinary circumstances will significantly affect the performance of the package. Moreover, as I essentially suggest in my Opinion delivered today in Case C-299/22 Tez Tour, the high level of uncertainty and the extremely rapidly evolving situation at the beginning of the pandemic, have to be taken into account to determine what the average traveller knew and his or her assessment of the likelihood of the occurrence of the significant effect on the performance of the contract.
61.      It follows from the abovementioned considerations that the wording,
context and objective of Directive 2015/2302 militate in favour of an interpretation of Article 12(2) of that directive
according to which the decisive point in time for determining the right to terminate the contract without paying a termination fee is based on an
ex ante assessment at the moment of termination of the contract.
62.      That being said, Article 12(2) does not stand in opposition to national courts considering
subsequent events as elements of proof, which are to be freely assessed in accordance with
domestic procedural law. As the Greek Government essentially argued at the hearing, if,
at the moment of termination, the traveller invoked unavoidable and extraordinary circumstances and the situation invoked by him or her
deteriorated, leading to a significant effect on the performance of the package, this serves to reinforce his or her prediction at the moment of termination. However, if the traveller was not justified in terminating the contract at the time of termination, subsequent events may not by themselves establish a right to a free of charge termination which he or she is not entitled to. Similarly, an improvement of the situation may not impinge retroactively on the entitlement of the traveller to a full refund if,
at the moment of termination, he or she made a reasonable prediction as to the impact of the unavoidable and extraordinary circumstances on the package.
63.      In the cases in the main proceedings, as regards Case
C‑414/22, the national court would have to assess whether, on the date of termination of the contract in April 2020, an average traveller could reasonably expect that the pandemic would have a significant effect on the performance of the package planned as a festive trip for the summer 2020. From the information contained in the reference for a preliminary ruling, taking into account the urging of the national authorities to postpone all non-essential travel and to make use of possibilities to terminate travel contracts, it would seem reasonable for an average traveller to predict, in April 2020, that such a trip (the very concept of which is the gathering of a high number of young people for celebrating) would not take place. It is for the national court to make that assessment, guided also by the parameters that I analyse in my Opinion delivered today in Case C‑299/22,
Tez Tour.
64.      It must also be observed
that, if the national court were to consider that the traveller was entitled to terminate the contract in accordance with Article 12(2) of Directive 2015/2302,
the traveller enjoys that right without being bound by any agreement to pay reduced termination fees which he or she accepted due to ignoring his or her rights. Indeed, that agreement results in a restriction of his or her rights which,
pursuant to Article 23(3) of that directive,
is not to be binding on the traveller.
65.      With regard to Case C‑584/22, the referring court indicates that the appellate court ought to have addressed whether,
at the moment of termination of the contract on 1 March 2020, a trip to Japan was already fraught with serious health risks which it would not be reasonable for a prudent traveller to take. For the reasons I analysed above, the moment of termination of the contract is the only one decisive in order to make that determination.
66.      In view of the above, I consider that Article 12(2) of Directive 2015/2302 should be interpreted as meaning that the assessment of the occurrence of unavoidable and extraordinary circumstances significantly affecting the performance of the contract, which gives rise to the right of the traveller to terminate the package contract without paying any termination fee, must be
made only at the time of the termination of the contract. The establishment of that right does not depend on whether such circumstances actually occurred after the termination of the contract.
V.      Conclusion
67.      In the light of the foregoing considerations, I propose that the Court reply to the questions referred by the Oberster Gerichtshof (Supreme Court, Austria) and by the Bundesgerichtshof (Federal Court, Germany) as follows:
Article 12(2) of Directive (EU) 2015/2302 (EU) 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
is to be interpreted as meaning that the assessment of the occurence of unavoidable and extraordinary circumstances significantly affecting the performance of the contract, which gives rise to the right of the traveller to terminate the package contract without paying any termination fee, must be made only at the time of the termination of the contract. The establishment of that right does not depend on whether such circumstances actually occurred after the termination of the contract.
1      Original language: English.
2      Opening remarks of the Director-General of the WHO at the media briefing on COVID-19, 11 March 2020.
3      See ‘Guidance on the right of travellers to terminate package travel contracts due to extraordinary circumstances resulting from COVID-19’, issued by the Irish Government, Department of Enterprise, Trade and Employment on 26 March 2020, p. 5.
4      Directive 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 (OJ
2015 L 326, p. 1).
5      Judgment of 8 June 2023, VB (Information for a person convicted in absentia) (C‑430/22 and C‑468/22, EU:C:2023:458, paragraph 24 and the case-law cited).
6      See point 39.