Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 15 September 2022( )

Case C‑407/21

Union fédérale des consommateurs – Que choisir (UFC – Que choisir),

Consommation, logement et cadre de vie (CLCV)

v

Premier ministre,

Ministre de l’Économie, des Finances et de la Relance

(Request for a preliminary ruling from the Conseil d’État (Council of State, France))

(Reference for a preliminary ruling – Article 267 TFEU – Directive (EU) 2015/2302 – Package travel and linked travel arrangements – Termination of a package travel contract – Unavoidable and extraordinary circumstances – COVID‑19 – Nature of reimbursement of the payments made by the traveller for the travel package – Reimbursement in cash or equivalent refund in the form of a voucher – Temporary derogation from the organiser’s obligation to make refunds to the traveller not later than 14 days after termination of the package travel contract)





Introduction

1. On 11 March 2020, the World Health Organisation (WHO) declared the COVID‑19 outbreak a ‘pandemic’. In his opening remarks at the media briefing on COVID‑19 on that date, the Director-General of WHO acknowledged that the COVID‑19 pandemic ‘is not just a public health crisis, it is a crisis that will touch every sector …’. Indeed, the pandemic and the emergency measures adopted by governments worldwide to prevent the spread of the virus created unprecedented disruption. Philosopher Edgar Morin wrote that even if the pandemic is not the first in human history, its ‘radical novelty’ lies in the fact that it caused a ‘megacrisis constituted by a combination of political, economic, social, ecological, national [and] global crises…’. ( ) The pandemic has also been a major challenge for the law. A commentator has accurately observed that it is a ‘stress test’ ( ) for contract law to the extent that it may ‘severely test the suitability of the current law in providing a suitable means of responding’ to its consequences. ( )

2. Among the sectors most seriously and immediately affected by the COVID‑19 pandemic was tourism. The economic impact is ‘unprecedented’ in view of the fact that tourism is the third-largest export category, accounting for 7% of global trade in 2019 and that ‘all parts of its vast value-chain have been affected’. ( ) The lockdowns, the curfews, the travel bans and the closure of borders limited considerably the very concept of travel, which is the freedom of movement. As a consequence of the restrictions adopted by governments in order to contain the spread of the virus, the operations of travel package organisers, transport carriers and businesses in the travel sector generally came to an immediate standstill. In addition, they also had to deal with widespread cancellations and claims for reimbursement.

3. The present case concerns, more specifically, the issue of the adoption of national measures providing for temporary derogations from consumer legislation governing package travel contracts. The contested measures allowed, inter alia, travel package organisers to issue travellers with vouchers instead of a refund as a means of managing their immediate liquidity issues. In view of the context of the health crisis, the case goes beyond the determination of rights in EU consumer law. It raises the question of the possible limits to the adequacy of the existing legal framework in dealing with the COVID‑19 pandemic. It also touches upon the remit of the emergency powers of the Member States in the context of the ‘pandemic state of emergency’. ( )

Legal framework

European Union law

Directive (EU) 2015/2302

4. Recitals 31 and 40 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) are worded as follows:

‘(31) Travellers … 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.

…

(40) For the insolvency protection to be effective, it should cover the foreseeable amounts of payments affected by the organiser’s insolvency and, where applicable, the foreseeable cost for repatriations … However, effective insolvency protection should not have to take into account highly remote risks, for instance the simultaneous insolvency of several of the largest organisers, where to do so would disproportionately affect the cost of the protection, thus hampering its effectiveness. In such cases the guarantee for refunds may be limited.’

5. Article 3, point 12 of that directive defines the concept of ‘unavoidable and extraordinary circumstances’ as meaning ‘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’.

6. Article 4 of Directive 2015/2302, headed ‘Level of harmonisation’, provides:

‘Unless otherwise provided for in this Directive, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions which would ensure a different level of traveller protection.’

7. Article 12 of Directive 2015/2302 provides:

‘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. …

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.

4. The organiser shall provide any refunds required under paragraphs 2 and 3 or, with respect to paragraph 1, reimburse any payments made by or on behalf of the traveller for the package minus the appropriate termination fee. Such refunds or reimbursements shall be made to the traveller without undue delay and in any event not later than 14 days after the package travel contract is terminated.

…’

8. Article 17 of Directive 2015/2302, headed ‘Effectiveness and scope of insolvency protection’, is worded as follows:

‘1. Member States shall ensure that organisers established in their territory provide security for the refund of all payments made by or on behalf of travellers in so far as the relevant services are not performed as a consequence of the organiser’s insolvency …

…

2. The security referred to in paragraph 1 shall be effective and shall cover reasonably foreseeable costs …

…’

9. Article 23 of Directive 2015/2302, headed ‘Imperative nature of the Directive’, provides in paragraphs 2 and 3 thereof:

‘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.’

Facts, procedure and the questions referred

10. The applicants, Union fédérale des consommateurs – Que choisir (UFC – Que choisir) and Consommation, logement et cadre de vie (CLCV) are French consumer associations. They contest the legality of various acts, including ordonnance n° 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 on the financial conditions for the termination of certain tourist travel and holiday contracts in the event of unavoidable and extraordinary circumstances or force majeure, ‘the contested order’).

11. The contested order was adopted on the basis of the power conferred on the French Government by the loi du 23 mars 2020 d’urgence pour faire face à l’épidémie de covid-19 (Law of 23 March 2020 on emergency measures in response to the COVID-19 outbreak) ‘in order to deal with the economic, financial and social consequences of the spread of the COVID‑19 epidemic and the consequences of the measures taken to limit that spread, and in particular in order to prevent and limit the cessation of operations on the part of natural and legal persons engaged in an economic activity and of associations, as well as its impact on employment’.

12. Article 1, paragraph II of the contested order provides for a derogation from certain provisions of Article L.211-14 of the code du tourisme (Tourism Code), which transposes Article 12(1) to (4) of Directive 2015/2302. It provides that where a travel and holiday sales contract is terminated between 1 March 2020 and 15 September 2020, ‘the organiser or retailer may offer, instead of a refund of the full amount of any payments made, a voucher’, for an amount equal to the full amount of any payments made under the terminated contract. That offer is to be made at the latest within a period of three months from notification of termination of the contract and is valid for a period of 18 months. It is only at the end of that 18-month period and if the client does not accept an identical or equivalent service to that provided for by the rescinded contract and offered to the client, that the professional will be required to refund to the client the full amount of the payments made.

13. The referring court explains that the provisions of the contested order were adopted in order to safeguard the cash flow and solvency of the service providers covered by that order, in circumstances in which more than 7 000 travel and holiday operators registered in France found themselves in serious difficulty. Indeed, due to the COVID‑19 pandemic simultaneously affecting not only France and the majority of the countries in Europe but also almost all continents, holiday operators were faced with cancellations of bookings on an unprecedented scale and had to deal with a lack of any new bookings. In those circumstances, an immediate refund in respect of all cancelled services was liable to jeopardise the economic operators concerned and, consequently, the possibility for clients to be able to obtain a refund of any payments made.

14. The referring court also states that the value of the vouchers issued by the French tour operators as at 15 September 2020, when the contested order ceased to have effect, amounted to approximately EUR 990 million, which represents approximately 10% of the turnover of the sector in a normal year.

15. According to the applicants’ submissions before the referring court, the provisions of the contested order infringe Article 12 of Directive 2015/2302. That article establishes the right of the traveller, in the event of termination of a package travel contract, to be provided with a refund of the full amount of any payments made under that contract within a period of 14 days following its termination. Moreover, the applicants argue that such provisions undermine free competition in the single market and the harmonisation objective of that directive.

16. In those circumstances, the Conseil d’État (Council of State, France) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 12 of [Directive 2015/2302] be interpreted as obliging the organiser of package travel, in the event of termination of the contract, to refund in cash the full amount of any payments made for the package, or as authorising an equivalent refund, in particular in the form of a credit note for an amount equal to the amount of any payments made?

(2) If it is the case that those refunds refer to a cash refund, are the health crisis related to the COVID-19 epidemic and its effects on travel operators, which have suffered as a result of that crisis a fall in their turnover estimated at between 50 and 80% and represent more than 7% of France’s gross domestic product and, in the case of package tour operators, have 30 000 employees in France and a turnover of nearly EUR 11 billion, capable of justifying and, if so, under what conditions and subject to what limitations, a temporary derogation from the obligation for the organiser to refund to the traveller the full amount of any payments made for the package within a period of 14 days following the termination of the contract, laid down in Article 12(4) of [Directive 2015/2302]?

(3) If the answer to the previous question is in the negative, is it possible, in the circumstances mentioned above, to adjust the temporal effects of a decision annulling national legislation which is contrary to Article 12(4) of [Directive 2015/2302]?’

17. Written observations have been submitted by the Union fédérale des consommateurs – Que choisir (UFC – Que choisir) and Consommation, logement et cadre de vie (CLCV), the Belgian, Czech, Danish, French, Italian, Slovak and Finnish Governments, and the European Commission. With the exception of the Danish and Finnish Governments, those parties were also represented at the hearing which took place on 1 June 2022.

Analysis

First question

18. By its first question, the referring court asks, in essence, whether Article 12(4) of Directive 2015/2302 must be interpreted as obliging the organiser of a package travel contract, in the event of termination of the contract, to provide a full refund in cash of any payments made, or as authorising an alternative, in particular in the form of a voucher for an amount equal to the amount of any payments made.

19. In that connection, it should be recalled that Article 12 of Directive 2015/2302 sets out the rights and obligations of the parties in relation to the termination of a package travel contract. More specifically, in the event of unavoidable and extraordinary circumstances, the second and third paragraphs of that article entitle both the traveller and the organiser to terminate the package travel contract, under the conditions set out therein. The termination of the package travel contract gives rise to the obligation on the part of the organiser to provide a full refund of any payments made for the travel package by the traveller. The refund, according to Article 12(4) of Directive 2015/2302, is to be made ‘without undue delay and in any event not later than 14 days after the package travel contract is terminated’.

20. Directive 2015/2302 does not define the concept of ‘refund’, nor does it expressly refer to the law of the Member States in that regard. In such a case, the need for a uniform application of EU law and the principle of equal treatment require that the wording of a provision of EU law must normally be given an independent and uniform interpretation throughout the European Union. In that connection, it is settled case-law that the meaning and scope of terms for which EU law provides no definition must be determined by considering their usual meaning in everyday language, while also taking into account the context in which they occur and the purposes of the rules of which they are part. ( )

21. In the first place, it should be pointed out that under Article 12(2) of Directive 2015/2302 the ‘refund’ concerns ‘any payments made for the package’. That reflects the meaning of the word ‘refund’ in everyday language, which refers to an amount of money that is paid back to someone. In the English language the term ‘refund’ is more particularly used when the payment is due ‘especially because you have paid too much or you are not happy with a product or service’. ( ) That understanding of the word ‘refund’ corresponds to various language versions of that provision. ( )

22. Therefore, the ‘refund’ of any payments made cannot be understood as entitling the organiser to provide a deferred form of payment, such as a voucher.

23. In the second place, that meaning is confirmed by the context of Article 12 of Directive 2015/2302, which forms part of Chapter III of that directive. In the same chapter, Article 11 of Directive 2015/2302 governs the alteration of other package travel contract terms. That article provides, in paragraph 2, that in certain circumstances, including in the event that the organiser is constrained to alter significantly any of the main characteristics of the travel services as referred to in point (a) of the first subparagraph of Article 5(1) of Directive 2015/2302, the traveller may accept the proposed changes or terminate the contract without paying a termination fee. If the traveller terminates the package travel contract, the traveller may accept a substitute package where this is offered by the organiser. Article 11(5) of Directive 2015/2302 provides that if the traveller does not accept a substitute package, the organiser shall refund all payments made by the traveller. As the French Government has pointed out in its written observations, that provision would be deprived of any effect if the organiser were permitted to issue the traveller a voucher instead of reimbursing any payments made. It follows that, within the scheme of Directive 2015/2302, the ‘refund’ to the traveller covers his or her right to receive payments made in cash. Any other form of substitute travel package or voucher should not, then, be regarded as equivalent to a ‘refund’.

24. Furthermore, Article 12(4) of Directive 2015/2302 provides that the refund is to be made ‘without undue delay and in any event not later than 14 days after the package travel contract is terminated’. As the Commission points out, in essence, in its written observations, it follows from that provision that the traveller is entitled to receive the monies promptly so as to be able to dispose of them immediately and according to his or her wishes.

25. That interpretation also finds support in the origins of Article 12 of Directive 2015/2302, which are set against the background of modernisation of the rules contained in Directive 90/314/EEC. ( ) Article 4(6) of Directive 90/314 provided that if the consumer withdraws from the contract in case of significant alteration of the terms of the package or if, for whatever cause, other than the fault of the consumer, the organiser cancels the package before the agreed date of departure, the consumer shall be entitled either to take a substitute package or to be repaid as soon as possible all sums paid by him or her under the contract. Article 12(4) of Directive 2015/2302 provides, however, for only one option, namely that of a ‘refund’ of any payments made. There is nothing to indicate that such ‘refund’ may be replaced against the will of the traveller by a voucher or any other substitute to payment in cash.

26. Other legislative instruments in the field of traveller and consumer rights make explicit provision for a voucher as a form of reimbursement but only as an option for the traveller. That is the case with regard to air passengers’ rights set out under Regulation (EC) No 261/2004. ( ) Article 7(3) of that regulation distinguishes between two possibilities for compensation: either in cash (by electronic bank transfer, bank orders or bank cheques) or, with the passenger’s signed agreement, in travel vouchers and/or other services. With regard to rail passengers’ rights, Article 17(2) of Regulation (EC) No 1371/2007 ( ) provides that compensation may be paid in vouchers and/or other services if the terms are flexible (in particular regarding the validity period and destination). The compensation is to be paid in money at the request of the passenger. The same right is set out with regard to sea passengers under Article 19(5) of Regulation (EU) No 1177/2010. ( ) Finally, in the field of consumer rights provided for under Directive 2011/83/EU, ( ) it clearly follows from recital 46 of that directive that the reimbursement of payments received from the consumer is not to be made by voucher unless the consumer has used vouchers for the initial transaction or has expressly accepted them.

27. Lastly, the interpretation according to which a refund by means of a mandatory voucher is not compatible with Article 12 of Directive 2015/2302 is supported by the objective pursued by that directive. As stated in recital 7 of that directive, the majority of travellers buying packages are consumers within the meaning of Union consumer law. Directive 2015/2302 is a measure which seeks to achieve a high level of consumer protection pursuant to the combined reading of Article 169(1) and (2)(a) and Article 114(3) TFEU, read in the light of Article 38 of the Charter of Fundamental Rights of the European Union. ( ) A broad interpretation of the term ‘refund’ to include vouchers would be liable to undermine that objective.

28. The Slovak Government takes a different view to that suggested in the present Opinion. It argues that some language versions, including the English version, distinguish between the ‘refund’ and ‘reimbursements’ of any payments made. In its view, it follows from the use of the two different terms that ‘reimbursements’ are to be in cash while a ‘refund’ may also include the offer of a voucher (at the choice of the organiser). Article 12(4) of Directive 2015/2302 refers to the organiser’s obligation to provide any ‘refunds’ required under paragraphs 2 and 3 or, with respect to paragraph 1, to ‘reimburse’ any payments made by the traveller for the package minus the appropriate termination fee. The obligation to provide a ‘refund’ arises when the package travel contract is terminated, inter alia, in the event of unavoidable and extraordinary circumstances, under Article 12(2) and (3) of Directive 2015/2302. The obligation to make ‘reimbursements’ arises when the package travel contract is terminated by the traveller in return, as the case may be, for a justifiable and appropriate termination fee.

29. There is nothing though in the use of the terms ‘refund’ and ‘reimbursement’ to indicate that the organiser is entitled to issue a refund in the form of a mandatory voucher. As I pointed out in point 21 above, the term ‘refund’ in English means the reimbursement of monies and is more particularly used where the person claiming money back is not satisfied with a product or service.

30. In any event, it is settled case-law that the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be made to override the other language versions. ( ) In the French-, Greek- and Spanish-language versions, Article 12(4) of Directive 2015/2302 employs the same term for the reimbursement of any payments received irrespective of the reason for termination of the contract. Therefore, the use of two terms in only some language versions cannot lead to a different conclusion from what can clearly be deduced from the context and purpose of that directive.

31. Therefore, I take the view that the organiser’s obligation to provide a refund to the traveller in accordance with Article 12(4) of Directive 2015/2302 covers only a reimbursement in cash, excluding any alternative imposed by the organiser, in particular in the form of a voucher.

32. The traveller may not waive his or her right to receive reimbursement in cash. Indeed, according to Article 23 of Directive 2015/2302, travellers may not waive the rights conferred on them by the national measures transposing that directive. That said, the imperative nature of Directive 2015/2302 does not prevent the organiser from offering to the traveller an optional voucher that he or she is free to accept after the event giving rise to the right to receive a refund occurs. As Commission Recommendation (EU) 2020/648 ( ) clarifies, the offer by the organiser of a voucher ‘does not deprive the travellers of their right to reimbursement in money’. Therefore, a mandatory voucher is not compatible with the imperative nature of Directive 2015/2302.

33. In the light of the above, I conclude that Article 12(4) of Directive 2015/2302 must be interpreted as obliging the organiser of a package travel contract, in the event of termination of the contract, to provide a refund in cash of any payments made and as precluding that organiser from imposing an alternative, in particular in the form of a voucher for an amount equal to the amount of any payments made. However, that provision does not prevent the traveller from opting to receive such a voucher after the event giving rise to the right to a refund occurs.

Second question

34. If the first question is answered in the affirmative, the referring court asks, in essence, whether the health crisis related to the COVID‑19 pandemic and the extraordinary impact it had on the tourism sector justify a derogation and, if so, under what conditions and subject to what limitations, from the organiser’s obligation to refund to the traveller the full amount of any payments made for the travel package within 14 days following the termination of the package travel contract, as laid down in Article 12(4) of Directive 2015/2302.

35. In order to give a useful response to the referring court’s question, I will examine, in turn, different aspects of the impact of the public health emergency on the scope and exercise of the rights provided for in Directive 2015/2302. The first is whether potential restrictions on the freedom of movement adopted by Member States due to the COVID‑19 pandemic may justify a derogation from the organiser’s obligation to provide a refund. The second relates to the question whether the pandemic is a situation outside the scope of the ‘unavoidable and extraordinary’ circumstances provided for by Directive 2015/2302. The third is the applicability of Directive 2015/2302 in the context of a pandemic. The fourth is whether a public health emergency may justify a derogation from a specific provision of secondary EU law on account of force majeure.

(a) Restrictions on freedom of movement and impact on the rights and obligations deriving under secondary EU law

36. A preliminary issue to be addressed with regard to a possible derogation from EU law in the light of the pandemic relates to the impact of any restrictions on the freedom of movement of EU citizens. The protection of public health, public policy and public security may justify the restriction of rights and freedoms provided for by Union law on the free movement of persons. ( ) A serious threat to public policy or internal security may justify the temporary reintroduction of border controls at internal borders according to the Schengen Borders Code. ( ) Moreover, ‘in an extremely critical situation a Member State can identify a need to reintroduce border controls as a reaction to the risk posed by a contagious disease’. ( ) The protection of public health, which falls within the competence of the Member States in accordance with Article 168(7) TFEU, may justify the adoption of further restrictions on free movement. Such restrictions should however ‘respect principles of EU law, in particular proportionality and non-discrimination’. ( ) During the pandemic, the European Union has sought to avoid the impact of unilateral measures by the Member States, which were a source of significant disruption to businesses and citizens, and ensure coordination among Member States. ( )

37. The specific question raised by the present case is whether a justified derogation from freedom of movement in the European Union can similarly justify further derogations from a specific provision of secondary EU law, which presupposes the exercise of the right to free movement. In that regard, it should be recalled that Directive 2015/2302 harmonises the rights and obligations arising from contracts relating to package travel to facilitate the creation of a real consumer internal market. ( )

38. The COVID‑19 pandemic led Member States to reintroduce border controls and adopt further public health measures which had a significant impact on the free movement of persons and services. Under such circumstances, it could be argued that if Member States are able to justify, exceptionally, the restriction of freedom of movement, they should be entitled to adopt further measures in the field of harmonised secondary EU law that presupposes freedom of movement in order to address the ‘knock-on’ effects of restrictions on that freedom.

39. However, if such a broad exception, not provided for in the Treaties, were recognised, it would seriously impair the primacy of EU law, its binding nature and its uniform application. Followed to its full logical conclusion, such an exception could imply that during a public health emergency EU law is not applicable. ( )

40. Instead, since the beginning of the pandemic, the EU institutions have endeavoured to promote coordination. Unilateral actions to which certain Member States resorted at the beginning of the pandemic progressively gave way to coordinated measures. ( ) Indeed, as the Commission emphasises in one of its communications relating to the EU vaccine strategy, ‘the backbone of the strong European response to the COVID pandemic has been unity and the preservation of the function of the Single Market’. ( ) It should also be pointed out that the recovery response to the COVID‑19 crisis has given rise to the largest ever stimulus package, the NextGenerationEU.

41. In view of the above, I take the view that any derogations from EU law on the freedom of movement cannot justify derogations from a specific provision of secondary EU law and, more specifically, from the traveller’s right to receive a refund, as provided for in Article 12(4) of Directive 2015/2302.

42. Having considered that preliminary issue, I will examine how the public health emergency caused by the COVID‑19 pandemic fits into the system of Directive 2015/2302.

(b) ‘Unavoidable and extraordinary circumstances’ and ‘force majeure’

43. Directive 2015/2302 provides, in Article 12(2) thereof, for the right of the traveller to terminate the 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’. The organiser may also terminate the package travel contract, according to Article 12(3)(b) of that directive where, inter alia, the organiser is prevented from performing the contract because of ‘unavoidable and extraordinary circumstances’. In each case, the traveller has the right to receive a full refund of any payments made. In order to determine the traveller’s right to receive a refund in accordance with that directive in the context of the COVID‑19 pandemic, it is therefore necessary to determine, at the outset, whether that pandemic should be regarded as covered, in general, by the concept of ‘unavoidable and extraordinary circumstances’. ( )

44. The concept of ‘unavoidable and extraordinary circumstances’ is defined in Article 3, point 12 of Directive 2015/2302 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’. Recital 31 of that directive gives some examples of events that fall within that concept, including ‘significant risks to human health such as the outbreak of a serious disease at the travel destination’. The outbreak of the COVID‑19 pandemic posed significant risks to human health not only at the travel destination in question but also worldwide. A pandemic fulfils, in general, the constituent elements of the definition of ‘unavoidable and extraordinary circumstances’. Indeed, it is a situation beyond anyone’s control and the consequences of which could not have been avoided even if all reasonable measures had been taken.

45. The French Government argues, however, that the pandemic constitutes a situation of force majeure which cannot be assimilated to the ‘unavoidable and extraordinary circumstances’ provided for in that directive. That government contends, in essence, that the extraordinary scale of the COVID‑19 pandemic makes it a situation which goes beyond ‘unavoidable and extraordinary circumstances’. The Czech, Italian and Slovak Governments submit that Directive 2015/2302 does not apply to the COVID‑19 pandemic. Thus, Member States remain competent to provide for different contractual obligations from those set out in Article 12(4) of that directive.

46. In support of its position, the French Government recalls the constituent elements of the concept of force majeure, which, in accordance with the case-law, covers ‘abnormal and unforeseeable circumstances which were outside the control of the party by whom it is pleaded and the consequences of which could not have been avoided in spite of the exercise of all due care’. ( ) That government maintains that the concept of ‘unavoidable and extraordinary circumstances’ does not ‘substitute in its entirety’ the concept of force majeure, which remains outside the scope of Directive 2015/2302.

47. In that regard, the French Government observes that the concept of force majeure is absent from Article 12 of Directive 2015/2302. Moreover, it points out that the definition of the concept of ‘unavoidable and extraordinary circumstances’ under Article 3, point 12, of Directive 2015/2302 is not identical to the concept of force majeure as it does not require that such circumstances be ‘abnormal and unforeseeable’. In its view, a combined reading of Article 12(4) and recital 31 of Directive 2015/2302 supports the conclusion that that directive covers extraordinary events which are isolated and limited in space and time. It considers that that directive does not envisage extraordinary events of worldwide impact and scale. It submits that such an interpretation is compatible with the effet utile of Article 12 of Directive 2015/2302 which is based on the assumption that the organiser can bear the financial consequences of the termination of the contract due to unavoidable and extraordinary circumstances. If that provision applied even in the context of a pandemic which brings the commercial activity of package travel organisers to a standstill, that would contradict the objective pursued by that directive, which is to preserve competitiveness of businesses while ensuring a high level of consumer protection.

48. In that regard, it should be recalled that, in accordance with settled case-law, since the concept of force majeure does not have the same scope in the various spheres of application of EU law, its meaning must be determined by reference to the legal context in which it is to operate. ( ) In my view, within the legal context of Directive 2015/2302, the concept of force majeure is covered by the concept of ‘unavoidable and extraordinary circumstances’.

49. As a preliminary point, as I have already mentioned, the pandemic fulfils, in general, the constituent elements of the definition of ‘unavoidable and extraordinary circumstances’. There is nothing in Directive 2015/2302 to indicate that an event which falls within that concept must nonetheless be excluded if it is a large-scale event or if it is particularly extraordinary. I am not convinced that a different conclusion can be drawn from Article 12(2) of Directive 2015/2302, which sets out the traveller’s right to terminate the package travel contract in the event of ‘unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity’. Indeed, that part of the sentence puts emphasis on the necessity to examine the situation at the place where the travel package is performed, namely the place of destination, in order to assess the occurrence of unavoidable and extraordinary circumstances. This is not intended, however, to exclude events that occur not only at the place of destination but also elsewhere.

50. Next, I consider it important to point out that the Court treats with caution attempts by carriers to invoke a separate category of particularly extraordinary events that would allow them to escape their obligations. I would cite, in this regard, an example from the field of air passengers’ rights. In the well-known judgment in McDonagh, ( ) concerning the eruption of the Eyjafjallajökull volcano, the Court ruled that “Regulation No 261/2004 contains nothing that would allow the conclusion to be drawn that it recognises a separate category of ‘particularly extraordinary’ events, beyond ‘extraordinary circumstances’ referred to in Article 5(3) of that regulation, which would lead to the air carrier being exempted from all its obligations...”. ( )

51. The application of the reasoning in McDonagh ( ) by analogy to Directive 2015/2302 would lead to the conclusion that there is nothing in that directive to support the conclusion that it recognises a separate category of events beyond the ‘unavoidable and extraordinary circumstances’ referred to in Article 3, point 12, thereof. That is all the more so as that directive, pursuant to Article 4, provides for a complete harmonisation of the rights and obligations of the parties to the package travel contract.

52. The interpretation of Directive 2015/2302 as recognising a separate category of particularly extraordinary circumstances, such as the COVID‑19 pandemic, which are excluded from the concept of ‘unavoidable and extraordinary circumstances’ could lead to contradictory results ultimately undermining the consistency of the system established by Directive 2015/2302. Indeed, the parties would be entitled to terminate the contract if the risk to human health arises at the travel destination and affects the performance of the package travel contract, but would remain bound by the contract in the event of a significant risk to human health caused by the pandemic, even though the performance of the travel package would be seriously affected. Furthermore, the organiser would be entitled to refuse to pay compensation for damages if it is proved that the lack of conformity in the performance of the package travel contract is due to ‘unavoidable and extraordinary circumstances’ that occur at the travel destination, according to Article 14(3)(c) of Directive 2015/2302, but would not be entitled to do so in the event of a pandemic.

53. This leads me to the conclusion that the interpretation proposed by the French Government would have the effect of calling into question the scheme and essential purpose of Directive 2015/2302, which is to enable travellers and traders to benefit fully from the internal market, while ensuring a high level of consumer protection. ( ) It would also create major legal uncertainty as it attempts to distinguish between situations of force majeure, on the one hand, and ‘unavoidable and extraordinary circumstances’, on the other, without any clear boundary between the two.

54. That interpretation is also supported by the origins of Directive 2015/2302. Article 4(6) of Directive 90/314, provided for the possibility for the organiser to cancel the contract before the agreed date of departure. In such case, the traveller was entitled to compensation from the organiser, except where ‘cancellation, excluding overbooking, is for reasons of force majeure, i.e. unusual and unforeseeable circumstances beyond the control of the party by whom it is pleaded, the consequences of which could not have been avoided even if all due care had been exercised’. No similar option to cancel was recognised for the traveller. Directive 2015/2302 filled that gap and conferred the same right on travellers. The legislature intended, therefore, to give equal rights to the parties to the package travel contract in the event of ‘unavoidable and extraordinary circumstances’. There is nothing to indicate that the intention was to limit the right of cancellation for both parties to the contract by excluding force majeure from the scope of ‘unavoidable and extraordinary circumstances’.

55. In that regard, it is important to point out that whereas the Commission’s legislative proposal ( ) used the term ‘unavoidable and extraordinary circumstances’, the Commission Staff working document accompanying that proposal ( ) uses, in certain instances, the term force majeure. ( ) Furthermore, the Report from the Commission to the European Parliament and the Council on the application of Directive 2015/2302 clarifies that ‘the concept of “unavoidable and extraordinary circumstances” replaces the “force majeure” concept set out in the 1990 Directive’. ( ) Therefore, retracing the origins of Directive 2015/2302 corroborates the proposition that in the context of Directive 2015/2302, force majeure is an equivalent concept to that of ‘unavoidable and extraordinary circumstances’.

56. In view of the above, I conclude that in the specific context of Directive 2015/2302, the concept of ‘unavoidable and extraordinary circumstances’ does not exclude the pandemic as a situation of force majeure.

(c) The applicability of Directive 2015/2302 in the context of a pandemic

57. The Belgian, Czech, Italian and Slovak Governments do not distinguish between ‘unavoidable and extraordinary circumstances’ and force majeure. They challenge, however, more broadly, the applicability of Directive 2015/2302 in the context of a pandemic. They claim, in essence, that that directive covers unavoidable and extraordinary circumstances of a local and limited scale, excluding a pandemic. They find support for that argument in recital 31 of Directive 2015/2302, which cites, among the examples of unavoidable and extraordinary circumstances which give rise to the right to terminate the travel contract early, the existence of ‘significant risks to human health such as the outbreak of a serious disease at the travel destination’. ( )

58. In my view, it is not possible to infer from recital 31 that the legislature intended to limit the applicability of Directive 2015/2302 to events occurring at local level. That recital gives only an indicative list of situations of unavoidable and extraordinary circumstances. It seems rather to lead to the opposite conclusion to that supported by the abovementioned governments. If the spread of a serious disease at the travel destination is an example of ‘unavoidable and extraordinary circumstances’, that should apply a fortiori with regard to the spread of a serious disease worldwide. The same line of reasoning can apply with regard to Article 12(2) of Directive 2015/2302, which sets out the traveller’s right to terminate the package travel contract 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’. If the traveller has the right to terminate the contract in the event of unavoidable and extraordinary circumstances occurring at local level and significantly affecting the performance of the travel package, he or she should a fortiori have the same right where such an event takes place on a global scale and significantly affects the performance of the travel package.

59. That said, the EU legislature may provide for different rights and obligations of the parties in the event of unavoidable and extraordinary circumstances depending on the scale of disruption. In that regard, I note that Directive 2015/2302 was adopted subsequent to the 2010 volcanic ash crisis which had a significant impact on the travel sector. Even if that impact is not comparable to that of the COVID‑19 pandemic, it was an opportunity for the legislature to amend the rules accordingly. This was the case, for example, with regard to the limitation of the organiser’s liability to bear the cost of necessary accommodation for a period not exceeding three nights per traveller as long as it is impossible to ensure the traveller’s return as agreed in the package travel contract because of unavoidable and extraordinary circumstances [Article 13(7) of Directive 2015/2302]. Therefore, I think it is reasonable to infer that if the legislature’s intention was to limit, exclude or make different provision for the right of the traveller to receive a refund within 14 days after the cancellation of the contract in the event of unavoidable and extraordinary circumstances causing a certain amount of disruption, it would have done so explicitly.

60. The Czech and Slovak Governments have further argued that the organiser’s obligation to refund the traveller pursuant to Article 12(4) of Directive 2015/2302 is not applicable in view of the limited scope of the insolvency protection. Article 17 of Directive 2015/2302 provides for the obligation for the Member States to ensure that organisers established in their territory provide security for the refund of all payments made by or on behalf of travellers in so far as the relevant services are not performed as a consequence of the organiser’s insolvency. That security ‘shall be effective and shall cover reasonably foreseeable costs’. ( ) Recital 40 of Directive 2015/2302 states that effective insolvency protection ‘should not have to take into account highly remote risks, for instance the simultaneous insolvency of several of the largest organisers, where to do so would disproportionately affect the cost of the protection, thus hampering its effectiveness’. In respect of such cases, that recital states, ‘the guarantee for refunds may be limited’. Those two governments submit that in the event of widespread failures of organisers, travellers would not receive any refunds as their claims are not protected.

61. In that regard, it follows from Article 17 of Directive 2015/2302 that the organiser’s obligation to provide security for the refund of any payments made covers the situation where the relevant services are not performed as a consequence of the organiser’s insolvency. This means that the claim for a refund is protected when the liquidity problem derives from the insolvency of the organiser. However, in the case of the pandemic, the liquidity problems derive from widespread cancellation requests, which may then lead to insolvency. That is the reason why the Commission Recommendation on vouchers acknowledges that if organisers become insolvent, ‘there is a risk that many travellers … would not receive any refund at all, as their claims against organisers … are not protected’. ( )

62. Furthermore, it cannot be inferred from the fact that Directive 2015/2302 does not harmonise insolvency protection against refund claims in such situations that Article 12(4) of that directive is not applicable. More broadly, Directive 2015/2302 does not harmonise restructuring measures or bankruptcy protection for travel organisers. It is true that in the absence of harmonisation at EU level, the substantive rules of insolvency law fall, at the present time, largely within the competence of the Member States. The latter must nevertheless exercise such competence in conformity with EU law, including with the fundamental freedoms under the FEU Treaty. ( ) Therefore, any measures Member States adopt to ease travel organisers’ liquidity problems should respect the essence of the traveller’s right to receive a refund, according to Article 12(4) of Directive 2015/2302. Those measures should respect, moreover, State aid law.

63. With regard to State aid law, the Commission Recommendation on vouchers recalls that it is possible for Member States to provide operators in the travel and transport sectors with liquidity support to ensure that reimbursement claims arising out of the COVID‑19 outbreak can be satisfied. That recommendation makes reference to the Temporary Framework for State aid measures ( ) as a basis for the compatibility of such liquidity support with EU rules on state aid.

64. In view of the foregoing considerations, I consider that Directive 2015/2302 is applicable in the context of the COVID‑19 pandemic.

(d) Public health emergency as a ground allowing individuals to derogate from a specific provision of secondary EU law

65. The next issue to be addressed is whether, in the event of a severe public health emergency, travel organisers can plead force majeure in order to derogate from a provision of secondary EU law. More specifically, the French Government submitted that Article 12 of Directive 2015/2302 does not exclude the possibility of applying the principle of ‘force majeure’, as developed in the Court’s case-law. It refers, in that regard, to the judgment in Billerud Karlsborg and Billerud Skärblacka ( ) (‘the judgment in Billerud’) as well as to the order in Luxaviation. ( )

66. The case which lead to the judgment in Billerud concerned companies which were sanctioned for failing to surrender their carbon dioxide emissions on time. Those companies argued that the alleged failure was due to an internal administrative breakdown. The Court, referring to its earlier case-law in the judgment in Valsabbia v Commission, ( ) ruled that ‘even in the absence of specific provisions … recognition of circumstances constituting force majeure presupposes that the external cause relied on by individuals has consequences which are inexorable and inevitable to the point of making it objectively impossible for the persons concerned to comply with their obligations’. ( ) The Court also stated, in that same paragraph, that it is for the domestic court to determine whether the operator concerned, despite all due care having been exercised in order to comply with time limits, was faced with unusual and unforeseeable circumstances which were beyond its control and went beyond mere internal breakdown. ( )

67. It follows from the context of the judgment in Billerud that the defence of force majeure as recognised in that judgment concerns a limited possibility to derogate from the legal consequences resulting from the failure to fulfil an obligation under EU law. I will next explore whether the reasoning set out in that judgment is of relevance in the context of the present case, which concerns the issue of a derogation from an obligation deriving from a specific provision of EU law on account of force majeure.

68. In subsections (b) and (c) of my analysis above, I have taken the view that a situation of force majeure comes within the scope of application of Directive 2015/2302 and is covered, in general, by the concept of ‘unavoidable and extraordinary circumstances’. Directive 2015/2302 already contains specific provisions governing the contractual relationship in the event of unavoidable and extraordinary circumstances. Those provisions include Article 12(2) and (3) of that directive, which provides for the right of the traveller or of the organiser to terminate the contract in the event of unavoidable and extraordinary circumstances. The effect of termination of the contract, pursuant to Article 12(4), is that it gives rise to the organiser’s obligation to provide the traveller with a full refund of any payments made for the travel package without undue delay and in any event not later than 14 days after the termination of the contract.

69. However, the fact that Directive 2015/2302 contains specific provisions on the impact of unavoidable and extraordinary circumstances on the contractual relationship does not necessarily mean that there is no scope for the application of the judgment in Billerud. That is so since, in the case of the pandemic, the unavoidable and extraordinary circumstances did not only prevent the organisers from performing the contract but also significantly affected their administrative capacity to process termination requests and their financial capacity to pay the refunds. From that perspective, there could still be scope for application of the principle established in the judgment in Billerud. That principle can be understood as allowing for a certain degree of tolerance with regard to the strict application of the law. ( ) Researchers studying the impact of COVID‑19 on consumer law and policy ( ) have developed the concept of ‘societal force majeure’ in order to reflect the ‘collective impact of the pandemic on all the involved interests’. The essence of that concept is to recognise that the pandemic has had a severe and unexpected impact on both consumers and businesses, and became a matter of concern for society as a whole.

70. Under such circumstances, the principle of force majeure in relation to the objective impossibility of complying with EU law established in the judgment in Billerud could be applicable so to afford a very limited possibility for temporary relief from compliance with a specific obligation laid down in a harmonised field of secondary EU law. Organisers could then plead force majeure where, despite all due care having been exercised in order to comply with the time limits laid down in Article 12(4) of Directive 2015/2302, the pandemic has consequences which are inexorable and inevitable resulting in temporarily insuperable difficulties to the point of making it objectively impossible for the persons concerned to comply with their obligations deriving from that provision. ( ) In that regard, a genuine risk of bankruptcy threatening the existence of the organiser who invokes the force majeure defence could be taken into account. ( ) The organisers may plead force majeure only for the period necessary to resolve those difficulties. ( ) Under such limitations, the application of the general principle of force majeure in relation to the objective impossibility of complying with EU law in the context of the travel contract is not a general escape clause (or a carte blanche). It can allow only for a temporary derogation from the strict time limits and only for the period necessary to arrange orderly reimbursements.

71. The next question to be addressed is whether the principle of force majeure in relation to the objective impossibility of complying with secondary EU law could allow organisers to defer reimbursement in the form of a voucher. From a contractual point of view, the proposal to issue a voucher is a form of adaptation of the contract. The offer of the voucher has the effect of preserving the contractual relationship. Indeed, the voucher has the effect of delaying performance to a later stage when circumstances allow for travel to resume. The compatibility of such a contractual adaptation with Directive 2015/2302 will depend on the specific characteristics of the voucher.

72. In the present case, a voucher which presents the characteristics set out in the contested order does not appear to be compatible with Directive 2015/2302. More specifically, the offer of such voucher does not appear to restore the equilibrium between the parties in view of the situation of force majeure. It rather appears to disadvantage one party to the contract, namely the traveller. As one commentator has written, ‘it is excessive to force the client to finance the contractual counterparty when he or she may not want to do so’. ( ) That is particularly so in view of the period of validity of the voucher, which is 18 months. It is only at the end of that period that the traveller has the possibility of exercising his or her right to reimbursement without there being any guarantee against the organiser’s insolvency. Moreover, it falls to the traveller to take the necessary steps in order to receive his or her monies at the end of that period. Any renegotiation of the contract should be beneficial for both parties. It is rightly pointed out in academic legal writing that tour operators and consumers should ‘mutually benefit from a voucher scheme’ and that would be the case ‘if tour organisers offer the consumer something on top of what they are legally entitled’. ( )

73. Ultimately, the contractual arrangement in view of a situation of force majeure will depend on the circumstances of each case in the light of the principle of good faith. ( ) In the context of the pandemic, specifically at the very beginning, the impact of termination of the contract on the other party cannot be completely ignored. Given the extent of the cancellations, even those organisers who had the financial capacity to reimburse all travellers would need to be given at least some time in order to process the reimbursement of payments made. ( ) At the hearing, the Commission conceded that in the initial stages of the pandemic the majority of travellers reacted to the situation with pragmatism and did not expect to be reimbursed within the tight deadline of 14 days applicable under normal circumstances. Provided they were given sufficient information on the conditions of their reimbursement, they would be willing to wait a reasonable length of time. Both parties to the package travel contract should therefore endeavour to act ‘responsibly and fairly’. ( )

74. In light of the foregoing, I take the view that an individual organiser may plead force majeure in circumstances in which, despite all due care having been exercised in order to comply with time limits, the COVID‑19 pandemic has had consequences which are inexorable and inevitable resulting in temporarily insuperable difficulties to the point of making it objectively impossible for the organiser to provide a refund under Article 12(4) of Directive 2015/2302. The organiser may plead force majeure only for the period necessary to resolve those difficulties. The plea of force majeure in relation to the objective impossibility of complying with EU law does not, however, allow organisers to issue a voucher with the characteristics set out in the contested order.

(e) Public health emergency as a ground allowing Member States to derogate from a specific provision of secondary EU law

75. If it were accepted that the reasoning in the judgment in Billerud may apply where it is objectively impossible for an individual organiser to comply with the obligation to refund any payments made by travellers within 14 days owing to the COVID-19 pandemic, that would still not give an appropriate answer in the present case. Indeed, the case does not concern litigation between private parties. It concerns the legality of a legislative provision by virtue of which a Member State decides to adopt a measure derogating from secondary EU law in response to the COVID-19 pandemic. Therefore, I consider that the statements made in the judgment in Billerud cannot automatically apply with regard to Member States.

76. With regard to the failure by a Member State to comply with EU law, it should be recalled that the Court, in the context of infringement actions, has exceptionally admitted force majeure as a ground justifying such failure. The relevant case-law concerned mainly the failure to transpose a measure of Union law ( ) or the failure to comply with a specific obligation set out in secondary EU law. ( ) According to that case-law, ‘a Member State which encounters temporarily insuperable difficulties preventing it from complying with its obligations under European Union law may plead force majeure only for the period necessary in order to resolve those difficulties’. ( )

77. In the present case, since it is not the Member State but the travel organiser who bears the obligation from which derogation is sought, it could be argued that there is no scope for applying the case-law which applies in infringement actions. However, if the judgment in Billerud were applicable to a high number of organisers and if it affected a very significant number of contracts, that could indicate a systemic problem and the need to have the necessary time to find a ‘systemic’ solution to address the impact of the pandemic. ( ) In such circumstances, if a Member State faces temporarily insuperable difficulties in applying, in its legal order, a provision transposing secondary EU law, it should also, exceptionally, be entitled to plead force majeure.

78. The application by analogy of the defence of force majeure to a situation of derogation from a specific provision of secondary EU law would have to be subject to particularly strict safeguards. It should not be understood as a general escape clause or a carte blanche to derogate from EU law. It concerns a very exceptional, limited in scope and temporary derogation where it is objectively impossible to comply with secondary EU law. I consider therefore that in the context of an ‘unprecedented health emergency’, ( ) such as the COVID‑19 pandemic, a Member State may plead force majeure justifying the adoption of a derogating measure in response to the pandemic if it encounters temporarily insuperable difficulties preventing it from complying with its obligation to apply, in its legal order, a specific provision of secondary EU law. However, the Member State may plead force majeure only for the period necessary in order to resolve those difficulties. The means chosen to resolve the insuperable difficulties must comply with the general principle of proportionality. It is for the Member State which pleads a situation of force majeure to prove that it is necessary to have recourse to a derogation in order to resolve the insuperable difficulties encountered due to that situation. In that regard, the Member State should be left with no alternative than to temporarily derogate from EU law.

79. In the present case, the French Government submits that it was compelled to establish a derogation from EU law and, more specifically, to allow travel organisers to issue a voucher instead of an immediate refund in order to prevent widespread bankruptcies of those operators. In that regard, I would make the following observations. During the initial stages of the pandemic, Member States were faced with major challenges in relation to the health of their populations and the economy. In view of the circumstances, governments were required to set a certain number of priorities, protect the vulnerable, support workers left unemployed while ensuring that the businesses hit the hardest by the pandemic did not collapse. At the hearing, the Czech Government insisted that the health emergency required Member States to take action in a large number of areas and rebalance the interests involved in view of the circumstances. It could then appear justified for a Member State to impose a suspension, which is limited in terms of scope and time, of the exercise of certain contractual rights for the period strictly necessary to allow the parties to adjust to a novel and unforeseen situation or for the government to find appropriate solutions. Such solutions could encourage the continuity of contracts in order to avoid liquidity crises in the economy without imposing an excessive burden on travellers who are entitled to a refund. ( )

80. The French Government contends that the contested derogating measure was applicable only with regard to package travel contracts terminated between 1 March 2020 and 15 September 2020. It was not prolonged after that period as it was considered that the travel sector had been given the time needed to adapt to the new situation. It is true that the derogation was temporary, to the extent that it covered only contracts terminated within the abovementioned six-month period. However, the contested order, as the Commission insisted at length in its oral submissions, impinged retroactively upon an acquired and mandatory right of travellers to receive the monies that they had already paid. In view of such significant impact on the consumer contract, it is not sufficient to plead that the measure remained in force only for a certain period of time. It must be subject to particular scrutiny. In that regard, I would point out two features of the voucher scheme provided by the contested order which, taken together with the retroactive effect, may indicate that it exceeded what was necessary to address the impact of the pandemic on the termination of travel contracts. The first feature is the duration of the suspension of the right to receive a refund. The contested order provides that the organiser may offer a voucher at the latest within a period of three months from the notification of the termination of the contract, which is valid for 18 months. The consumer may exercise his or her right to receive a refund of any payments made in cash only after that 18-month period has elapsed. In practical terms, the contested order suspends the traveller’s right to recover the monies that he or she had already paid, for a period of between 18 and 21 months after the termination of the contract. The French Government did not explain why it was necessary to deprive travellers of their right deriving from Article 12(4) of Directive 2015/2302 for a minimum period of 18 months after the issue of the voucher.

81. The second feature is the absence of any advantage offered to travellers in order to counterbalance the severe interference with their right to a refund. Indeed, the voucher scheme established by the contested order forced travellers to bear the risk of the impact of the pandemic on the travel contract with no measure to counterbalance that risk. In that regard, I find particularly relevant one of the principles drafted by the European Law Institute for the COVID‑19 crisis related to ‘Force Majeure and Hardship’ and worded as follows: ‘In conformity with the principle of solidarity, States should ensure that the consequences of the disruption of contractual relationships, such as the cancellation of travel arrangements, should not be at the sole risk of one party, in particular of a consumer or SME.’ ( ) In other words, the ‘too big to fail’ argument should not be accepted where it results in the disadvantage of the consumer citizen.

82. With regard to suitable alternatives, it is appropriate to refer to the Commission Recommendation on vouchers, which has a specific section on supporting measures and State aid. ( ) It stresses the possibility for the Member States of providing support to operators in the transport and travel sectors in order to ensure that reimbursement claims arising out of the COVID‑19 pandemic can be satisfied. To the extent that operators in the travel sector are in need of general liquidity support, that recommendation stipulates that Member States may also decide to introduce schemes to provide operators with such support. In that regard, reference is made to the Temporary Framework which provides the basis for the compatibility of any liquidity support with EU requirements on state aid.

83. The Temporary Framework, amended six consecutive times, provides for several types of aid which can be assessed under Article 107(2)(b) ( ) or (3)(b) TFEU. ( ) With regard in particular to compensation given to tourism undertakings, the Temporary Framework makes it clear that Member States can notify such compensation measures and the Commission will assess them directly under Article 107(2)(b). ( ) I would emphasise that the Commission has committed itself to ensuring a ‘swift’ approval process. ( ) Various Member States availed themselves of the Temporary Framework and notified State aid measures to support package travel organisers, which the Commission approved in accordance with the Temporary Framework or under the Treaty. ( )

84. It would appear, therefore, that EU law offered the Member States alternative tools to address the liquidity issues of organisers. In support of that point, the Danish Government took, in its submissions, the example of the adoption of a support loan scheme for the travel sector (‘the Rejsegarantifonden’). In their responses to a question put by the Court, the governments that took part in the hearing set out their position as to the possibility of establishing a similar fund. The French Government contended that it was not possible to transpose the solution adopted by the Danish Government in France since no comparable fund existed before the health crisis. In particular, the French Government explained that, in France, the business of insurance is limited to a role of guarantor and may not lend money without authorisation.

85. When assessing the options available to each Member State in order to support the travel organisers in response to the pandemic, it is necessary to take into account the structural differences of each country. However, in that process, Member States must comply with the principle of loyal cooperation in accordance with Article 4(3) TEU. That principle binds both the Member States and the Union institutions. In circumstances where a Member State notifies the Commission of the significant difficulties it encounters in applying a specific provision of EU law due to a public health emergency, the Commission has an obligation to take due account of those difficulties and assist the Member State concerned. That is all the more so as EU law does not have its own general ‘EU emergency regime’. ( )

86. It should also be pointed out that, in the first months of the pandemic, no specific legislation existed at the level of EU law in relation to vouchers issued as an alternative to reimbursement for cancelled transport and package travel contracts. ( ) On 5 March 2020, with an update on 19 March 2020, the Commission published on its website informal guidance on the application of Directive 2015/2302, confirming the traveller’s right to receive a full refund but also stating that it is possible for the traveller to accept a voucher. ( ) In a letter of 27 March 2020 addressed to all Member States, Commissioner Reynders reaffirmed the traveller’s right to receive a refund. He suggested that tour operators could offer vouchers, on the condition that such vouchers are not mandatory. He also suggested that Member States should adopt measures in order to enhance the traveller’s confidence in opting for a voucher. ( )

87. In the meantime, several Member States requested the Commission to suspend the right to a refund within 14 days and/or replace it with a temporary voucher solution. ( ) Instead, the Commission reaffirmed its position that the rights of the consumers should not be suspended and that ‘it would not follow calls for lowering consumer protection’. ( ) On 13 May 2020, the Commission issued its Recommendation on vouchers. In that recommendation, the Commission fully acknowledges the serious impact of cancellations due to the pandemic, the organisers’ liquidity problems as well as the risk that many travellers would not receive any refund whatsoever, as their claims against organisers and carriers are not protected. The solution to those issues lies, according to that recommendation, in making vouchers more attractive for travellers. Towards that aim, the Commission invited Member States to consider the adoption of guarantee schemes to support operators in the travel and transport sectors in line with EU State aid rules. The Commission suggested that Member States might also consider adopting temporary State aid measures under the conditions set out in the Temporary Framework.

88. At the hearing, the Commission submitted that in other fields of law, ( ) the EU institutions considered it necessary and justified to propose to the EU legislature that a derogation from specific provisions of secondary EU law be adopted. However, the decision was taken not to do so with regard to Article 12(4) of Directive 2015/2302. The Commission explained that an amendment to Directive 2015/2302 would retroactively affect the acquired rights of consumers. Moreover, the Commission pointed out that approximately half of the Member States did not consider it absolutely necessary to amend that directive and managed to accommodate the situation differently. Irrespective of the policy choice made, I believe that in view of the strong concerns expressed by various Member States on the repercussions of widespread cancellations of travel contracts, one could expect the proposal of a legislative act (instead of a recommendation) in order to address the situation in a coordinated way. However, that observation alone does not mean that Member States are free to introduce a unilateral derogation from EU law beyond what is strictly necessary to overcome a situation of force majeure.

89. A final remark relates to any lessons to be drawn for the future. The necessity to consider the issues raised by the COVID‑19 pandemic is reflected in the ongoing review of the current EU rules on package travel. As announced in its New Consumer Agenda, the Commission has undertaken to carry out by 2022 a ‘deeper analysis into whether the current regulatory framework for package travel, including as regards insolvency protection, is still fully up to the task of ensuring robust and comprehensive consumer protection at all times’. ( ) The Commission makes it clear, however, that the objective of the assessment ‘will not aim to lower consumer protection’.

90. In view of all the foregoing, I consider that the answer to the second question is that the health crisis related to the COVID‑19 pandemic and the extraordinary impact it had on the tourism sector may justify a temporary derogation from the organiser’s obligation to refund to the traveller the full amount of any payments made for the travel package within 14 days following the termination of the package travel contract, as laid down in Article 12(4) of Directive 2015/2302, only for the period necessary in order for the Member State to resolve the insuperable difficulties which prevent it from applying the national provision transposing such an obligation. The means chosen to address such difficulties must comply with the principle of proportionality. It is for the Member State which pleads a situation of force majeure to prove that it is necessary to have recourse to a derogation in order to resolve such difficulties encountered owing to that situation. In that regard, it is necessary to verify that there is no alternative measure to having recourse to a derogation from EU law. However, the contested order appears to exceed what is necessary and proportionate in order to address the insuperable difficulties encountered, particularly in view of its retroactive effect, the duration of the suspension of the right to receive a refund and the lack of any advantage offered to the traveller in order to counterbalance the retroactive impact on his or her rights deriving from the package travel contract.

Third question

91. By its third question, the referring court asks, in essence, in the event that the Court decides that Article 12(4) of Directive 2015/2302 must be interpreted as precluding a derogation such as that established by the contested order, whether it is possible, in the circumstances mentioned in the second question, to adjust the temporal effects of a decision annulling national legislation which is contrary to that provision.

92. In that regard, it should be recalled that only the Court of Justice may, in exceptional cases, for overriding considerations of legal certainty, allow temporary suspension of the ousting effect of a rule of EU law with respect to national law that is contrary thereto. If national courts had the power to give provisions of national law primacy in relation to EU law contravened by those provisions, even temporarily, the uniform application of EU law would be undermined. ( )

93. Therefore, it is only exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict for any person concerned the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties. ( )

94. In the present case, with regard to the first criterion related to the principle of good faith, it could be argued that the French Government acted with due regard to such principle at least in so far as the initial stages of the pandemic are concerned and at least until the Commission Recommendation on vouchers was published. It is true that the Commission communicated its position following the outbreak of the pandemic. ( ) However, that communication on 5 March 2020 (with an update on 19 March 2020) constituted ‘informal guidance’. ( ) The Commission acknowledged in its written observations that it was required to deal with a certain number of difficulties related to problems of inadequacy of the EU legislation with regard to the particular circumstances of the crisis. In order to address those difficulties, the Commission considered it necessary to make urgent legislative proposals in order temporarily to adapt to the situation. As I have mentioned above in my analysis of the second question,( ) as far as Directive 2015/2302 is concerned, several Member States requested that the Commission suspend the right to a refund within 14 days and/or replace it with a temporary voucher solution.

95. The Commission states in its written observations that its services assessed, at the beginning of the pandemic, whether it would be appropriate to adopt specific measures in order to protect organisers. The Commission finally decided that it was not appropriate to make a legislative proposal to that effect. As it explained during the hearing, one of the decisive factors behind that decision was the concern that contracts entered into by travellers would be affected retroactively. Instead, the Commission adopted the Recommendation on vouchers.

96. The above sequence of events indicate, in my view, that at least at the initial stages of the pandemic, there were reasonable grounds for the Member States to consider that the existing legislative framework might be adapted in view of the circumstances of the COVID‑19 pandemic. Therefore, I would agree with the Belgian Government that the French Government acted in good faith, at least at the initial stages of the pandemic when it decided to adopt the contested order. However, after the publication of the Commission Recommendation on vouchers, the position of the French Government that the contested order be maintained no longer appears convincing.

97. The second condition required by the case-law cited in point 93 above for restricting the temporal effect of a judgment of the Court is the establishment of ‘a risk of serious difficulties’. In the present case, the referring court stated that the value of the vouchers issued by French travel organisers as at 15 September 2020, when the contested order ceased to apply, was estimated at EUR 990 million, which represents approximately 10% of the turnover of the sector in a normal year. However, the fact that organisers encountered liquidity problems at the beginning of the pandemic does not mean that they still continue to encounter such problems. In that regard, it should be pointed out that more than two years after the entry into force of the contested order and two years after its expiry (15 September 2020), the financial means available to the Member States in order to mitigate the liquidity needs of organisers affected by the pandemic are well established. ( ) It may be that organisers are required to pay interest on any refunds that were not made while the contested order remained in force. However, neither the referring court nor the French Government elaborated on that aspect or on the question whether this would lead to a ‘risk of serious difficulties’.

98. Therefore, since a risk of serious difficulties resulting from the interpretation suggested in this Opinion has not been shown to exist and the criteria referred to in point 93 above are cumulative, it is not appropriate to limit the judgment’s temporal effects. ( )

99. To give a complete answer, it should be pointed out that the Court has recognised, on a case-by-case basis and by way of exception, that a national court has the power to adjust the effects of the annulment of a national provision held to be incompatible with EU law, with due regard to the conditions laid down in the Court’s case-law. ( )

100. The Court has recognised such a possibility in the context of an ‘overriding consideration’ relating to the environment, provided that certain conditions defined in the case-law are met. ( ) The Court has also acknowledged, by way of exception, the possibility of maintaining the effects of measures in the field of environmental law where such maintenance is justified by overriding considerations relating to the need to nullify a genuine and serious threat of rupture of the electricity supply in the Member State concerned, which cannot be remedied by any other means or alternatives, particularly in the context of the internal market. ( ) The effects may only be maintained for as long as is strictly necessary to remedy the breach. The application of that case-law is subject, therefore, to the existence of a ‘genuine and serious threat of disruption of the security of the energy supply’.

101. In the case in the main proceedings, it is difficult to maintain that there is an overriding interest at least comparable with the supply of electricity in a Member State. Moreover, the contested order is no longer in force. Therefore, as stated, in essence, by the Commission, the temporal limitation of the effects of the Court’s judgment in the present case would not allow the administration to remedy the infringement found. Instead, it would lead to a de facto validation of the infringement of EU law.

102. It must also be pointed out that the practical consequences of setting aside the contested order are a matter for the referring court. The documents before the Court do not contain information on the precise impact that the setting aside would have on the organisers. In any event, the economic repercussions of the annulment would not suffice alone to justify the limitation of the temporal effects of the judgment of the Court. ( )

103. In the light of the foregoing, I take the view that the answer to the third question should be that it is not appropriate to adjust the temporal effects of a decision annulling national legislation which is contrary to Article 12(4) of Directive 2015/2302.

Conclusion

104. On the basis of the analysis set out above, I propose that the Court answer the questions referred by the Conseil d’Etat (Council of State, France) as follows:

(1) Article 12(4) 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,

must be interpreted as follows:

in the event of termination of a package travel contract, the organiser is obliged to provide a refund in cash of any payments made and is precluded from imposing an alternative, in particular in the form of a voucher for an amount equal to the amount of any payments made. However, that provision does not prevent the traveller from opting to receive such a voucher after the event giving rise to the right to a refund occurs.

(2) The health crisis related to the COVID‑19 pandemic and the extraordinary impact it had on the tourism sector may justify a temporary derogation from the organiser’s obligation to refund to the traveller the full amount of any payments made for the travel package within 14 days following the termination of the package travel contract, as laid down in Article 12(4) of Directive 2015/2302, only for the period necessary in order for the Member State to resolve the insuperable difficulties which prevent it from maintaining the national provision transposing such an obligation. The means chosen to encounter such difficulties must comply with the principle of proportionality. It is for the Member State which pleads a situation of force majeure to prove that it is necessary to have recourse to a derogation in order to resolve such difficulties encountered owing to that situation. In that regard, it is necessary to verify that there is no alternative measure to having recourse to a derogation from EU law. However, the contested order appears to exceed what is necessary and proportionate in order to address the insuperable difficulties encountered, particularly in view of the retroactive effect of the contested measure, the duration of the suspension of the right to receive a refund and the lack of any advantage offered to the traveller in order to counterbalance the retroactive impact on his or her rights deriving from the package travel contract.

(3) It is not appropriate to adjust the temporal effects of a decision annulling national legislation which is contrary to Article 12(4) of Directive 2015/2302.