62021CJ0407_RES
Case C‑407/21
Union fédérale des consommateurs – Que choisir (UFC – Que choisir)andConsommation, logement et cadre de vie (CLCV)
v
Premier ministreandMinistre de l’Économie, des Finances et de la Relance
(Request for a preliminary ruling from the Conseil d’État (France))
Judgment of the Court (Second Chamber), 8 June 2023
(Reference for a preliminary ruling – Package travel and linked travel arrangements – Directive (EU) 2015/2302 – Article 12(2) to (4) – Termination of a package travel contract – Unavoidable and extraordinary circumstances – COVID-19 pandemic – Refund of payments made by the traveller concerned for a package – Refund in the form of a sum of money or equivalent refund in the form of a credit note (‘voucher’) – Obligation to provide that traveller with a refund not later than 14 days after the relevant contract is terminated – Temporary derogation from that obligation – Adjustment of the temporal effects of a decision taken in accordance with national law annulling national legislation that is contrary to that obligation)
Approximation of laws – Package travel, package holidays and package tours – Directive 2015/2302 – Termination of the package travel contract – Obligation on the travel organiser to provide a refund of any payments made by the traveller concerned for that package – Concept of refund – Scope
(European Parliament and Council Directive 2015/2302, Art. 12(2) and (3))
(see paragraphs 23-26, 31-35, operative part 1)
Approximation of laws – Package travel, package holidays and package tours – Directive 2015/2302 – Termination of a package travel contract – Obligation on the travel organiser to provide a refund of any payments made by the traveller concerned for that package – Temporary derogation – National legislation which releases package travel organisers, in the context of the COVID-19 pandemic, from their obligation to provide the traveller concerned with a full refund of any payments made under the terminated contract – Aim – Safeguarding the solvency of travel organisers and the viability of the sector concerned – Not permissible
(European Parliament and Council Directive 2015/2302, Arts 4 and 12(2) to (4))
(see paragraphs 45, 46, 49-51, 54-58, 67- 71, 75, 76, operative part 2)
Member States – Obligations – Duty of sincere cooperation – No possibility for a national court to adjust the temporal effects of its decision annulling national legislation that is contrary to EU law
(Art. 4(3) TEU)
(see paragraphs 80-85, operative part 3)
Résumé
In the context of the COVID-19 pandemic, the French Government adopted legislation with the aim of temporarily releasing package travel organisers from their obligation to provide a refund of the payments made by travellers in the event of termination of a package travel contract. (
1
) Two consumer protection associations sought, before the Conseil d’État (Council of State, France), the annulment of that legislation, claiming an infringement of the right of travellers who had entered into such a contract to terminate it following the occurrence of ‘unavoidable and extraordinary circumstances’ and to be provided with a full refund of any payments made for the package not later than 14 days after termination, as provided for by the Package Travel Directive. (
2
)
That court expresses doubts, in particular, as to the interpretation of the concept of ‘refund’ provided for by that directive and as to the compatibility with that directive of national legislation relating to the temporary exemption of package travel organisers from their reimbursement obligation.
By its judgment, the Court of Justice clarifies the concept of ‘refund’ in the context of the Package Travel Directive. In addition, it rules on the incompatibility of the national legislation with that directive (
3
) and on the adjustment of the temporal effects of a national decision annulling that same legislation, held to be incompatible with EU law.
Findings of the Court
In the first place, the Court holds that, on a literal interpretation, the concept of ‘refund’ within the meaning of the Package Travel Directive (
4
) refers to the reimbursement of any payments made for a package solely in the form of a sum of money. The possibility of replacing that obligation to pay a sum of money with a benefit in another form, such as, in particular, the offer of vouchers, is not expressly provided for in that directive. That right to reimbursement in money, which consumers are able to dispose of freely, contributes to the objective of protecting their interests.
In the second place, the Court holds that the Package Travel Directive precludes the temporary release of package travel organisers, (
5
) in the context of the COVID-19 pandemic, from their obligation to provide the travellers concerned, not later than 14 days after a contract is terminated, with a full refund of any payments made under the terminated contract. That conclusion remains the same even where such a national measure is intended to prevent, due to the large number of anticipated reimbursement claims, the solvency of those travel organisers from being affected to the point of jeopardising their existence and thus to preserve the viability of the sector concerned.
The Court analyses, first of all, the concept of ‘unavoidable and extraordinary circumstances’. (
6
) In accordance with the principle of legal certainty and with regard to consumer protection, that concept is capable of covering the COVID-19 pandemic, in so far as it entails the existence of ‘serious risks to human health’, (
7
) and may be applied to terminations of package travel contracts where such terminations are based on the consequences caused by such an event.
Next, the Court points out that the concept of ‘unavoidable and extraordinary circumstances’ is akin to the concept of ‘force majeure’ and constitutes, in the light, in particular, of the travaux préparatoires for the Package Travel Directive, an exhaustive implementation of the latter concept for the purposes of that directive. Thus, Member States may not release, on the grounds of force majeure, even if only temporarily, package travel organisers from their reimbursement obligation laid down by that directive, since that directive does not provide for any exception to the imperative nature of that obligation.
Lastly, even if Member States were able to argue, before their national courts, that the non-conformity of national legislation with the provisions of a directive is justified on the grounds of force majeure, the Court states that national legislation which temporarily releases, in the circumstances of a global health crisis such as the COVID-19 pandemic, package travel organisers from their obligation to provide the travellers concerned with a full refund of any payments made for a package does not satisfy the conditions governing reliance on force majeure by the Member States.
Thus, first, while the COVID-19 pandemic falls within circumstances beyond the control of the Member State concerned and those circumstances are abnormal and unforeseeable, national legislation which releases, in a generalised manner, all travel organisers from their reimbursement obligation cannot, by its very nature, be justified by force majeure. A general temporary suspension of that reimbursement obligation does not take into account the specific and individual financial situation of the travel organisers concerned. Secondly, it has not been proven that the financial consequences which that legislation is intended to address could not have been avoided other than by infringing the Package Travel Directive, and in particular by adopting certain State aid measures. Thirdly, that national legislation, which provides for the release of package travel organisers from their reimbursement obligation for a period of up to 21 months from notification of the ‘rescission’ of the relevant package travel contract, is clearly not framed in such a way as to limit its effects to the period necessary to remedy the difficulties caused by the event capable of constituting force majeure.
In the third and final place, the Court recalls that where a national court is hearing an action, brought in accordance with its national law, for the annulment of national legislation which it considers to be contrary to EU law, that court is required to annul that legislation. In the present case, the Court states, first, that the threat to the economic interests of operators active in the package travel sector, occasioned by the COVID-19 pandemic, is not comparable to overriding considerations relating to the protection of the environment or the electricity supply in the Member State concerned, which are exceptional circumstances in respect of which the Court has, moreover, recognised that national courts have the power to adjust the temporal effects of their decisions to annul national legislation that is held to be incompatible with EU law. Secondly, the Court states that it is not apparent that the annulment of national legislation allowing Member States to release, in the context of the COVID-19 pandemic, package travel organisers from their reimbursement obligation would have adverse consequences for the package travel sector to such an extent that maintaining its effects would be necessary in order to protect the financial interests of the operators in that sector. Therefore, the principle of sincere cooperation (
8
) does not allow a national court, which is hearing an action for the annulment of national legislation that is contrary to the Package Travel Directive, to adjust the temporal effects of its decision annulling that national legislation.
(
1
)	Under Article 1 of ordonnance No 2020-315 du 25 mars 2020 relative aux conditions financières de résolution de certains contrats de voyages touristiques et de séjours en cas de circonstances exceptionnelles et inévitables ou de force majeure (Order No 2020-315 of 25 March 2020 concerning the financial conditions for the rescission of certain tourist travel and holiday contracts in the event of unavoidable and extraordinary circumstances or force majeure), travel organisers were authorised, as regards any ‘rescission’ notified between 1 March and 15 September 2020, to fulfil their reimbursement obligation by offering the traveller concerned, not later than three months after notification of the ‘rescission’ of the relevant package travel contract, a voucher for an amount equal to the payments made for that package, with that offer being valid for a period of 18 months.
(
2
)	See Article 12 of 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 (OJ 2015 L 326, p. 1; ‘the Package Travel Directive’). Under the first sentence of Article 12(2), the traveller has the right to terminate a 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.
(
3
)	See in particular Article 4 and Article 12(2) to (4) of the Package Travel Directive.
(
4
)	See in particular Article 12(2) and (3) of the Package Travel Directive. The second sentence of Article 12(2) provides that, in the event of termination of a package travel contract, that traveller is entitled to a full refund of any payments made for the package. Furthermore, in accordance with Article 4 and Article 12(3)(b) of that directive, if the tour organiser concerned is prevented from performing a package travel contract because of ‘unavoidable and extraordinary circumstances’, it may terminate that contract and provide the traveller with a full refund of any payments made for the package, with such refund to be made without undue delay and, in any event, not later than 14 days after the package travel contract is terminated.
(
5
)	See Article 4 and Article 12(2) to (4) of the Package Travel Directive.
(
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)	As provided for in Article 12(2) and (3)(b) of the Package Travel Directive. The concept of ‘unavoidable and extraordinary circumstances’ is defined in Article 3(12) of that directive as 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’.
(
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)	In accordance with recital 31 of the Package Travel Directive, which clarifies the scope of the concept of ‘unavoidable and extraordinary circumstances’, serious risks to human health come within that concept.
(
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)	Laid down in Article 4(3) TEU.