1 This request for a preliminary ruling concerns the validity of Article 5 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), in the light of Articles 114 and 169 TFEU, as well as the interpretation of the latter two articles and Article 15 of that directive.
2 The request has been made in the proceedings between RTG, a traveller, and Tuk Tuk Travel SL, a travel organiser, concerning an amount paid by that traveller following the conclusion of the package travel contract, in which the traveller seeks the partial refund by that travel organiser upon terminating that travel contract as a result of the propagation of the coronavirus in the countries of destination.
3 Recital 5 of Directive 2015/2302 states: ‘In accordance with Article 26(2) and Article 49 TFEU, the internal market is to comprise an area without internal frontiers in which the free movement of goods and services and the freedom of establishment are ensured. The harmonisation of the rights and obligations arising from contracts relating to package travel and to linked travel arrangements is necessary for the creation of a real consumer internal market in that area, striking the right balance between a high level of consumer protection and the competitiveness of businesses.’
4 Article 1 of that directive, entitled ‘Subject matter’, provides: ‘The purpose of this Directive is to contribute to the proper functioning of the internal market and to the achievement of a high and as uniform as possible level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States in respect of contracts between travellers and traders relating to package travel and linked travel arrangements.’
5 Article 5 of that directive, entitled ‘Pre-contractual information’, provides: ‘1. Member States shall ensure that, before the traveller is bound by any package travel contract or any corresponding offer, the organiser and, where the package is sold through a retailer, also the retailer shall provide the traveller with the standard information by means of the relevant form as set out in Part A or Part B of Annex I, and, where applicable to the package, with the following information: (a) the main characteristics of the travel services: … (g) information that the traveller may terminate the contract at any time before the start of the package in return for payment of an appropriate termination fee, or, where applicable, the standardised termination fees requested by the organiser, in accordance with Article 12(1); … 3. The information referred to in paragraphs 1 and 2 shall be provided in a clear, comprehensible and prominent manner. Where such information is provided in writing, it shall be legible.’
6 Article 12 of that directive, entitled ‘Termination of the package travel contract and the right of withdrawal before the start of the package’, states: ‘1. Member States shall ensure that the traveller may terminate the package travel contract at any time before the start of the package. Where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. The package travel contract may specify reasonable standardised termination fees based on the time of the termination of the contract before the start of the package and the expected cost savings and income from alternative deployment of the travel services. In the absence of standardised termination fees, the amount of the termination fee shall correspond to the price of the package minus the cost savings and income from alternative deployment of the travel services. At the traveller’s request the organiser shall provide a justification for the amount of the termination fees. 2. Notwithstanding paragraph 1, the traveller shall have the right to terminate the package travel contract before the start of the package without paying any termination fee in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination. In the event of termination of the package travel contract under this paragraph, the traveller shall be entitled to a full refund of any payments made for the package, but shall not be entitled to additional compensation. …’
7 Article 23 of Directive 2015/2302, entitled ‘Imperative nature of the Directive’, provides: ‘1. A declaration by an organiser of a package or a trader facilitating a linked travel arrangement that he is acting exclusively as a travel service provider, as an intermediary or in any other capacity, or that a package or a linked travel arrangement does not constitute a package or a linked travel arrangement, shall not absolve that organiser or trader from the obligations imposed on them under this Directive. 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.’
8 Article 24 of that directive, entitled ‘Enforcement’, states: ‘Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.’
9 Part A of Annex I to that directive, entitled ‘Standard information form for package travel contracts where the use of hyperlinks is possible’, sets out, in a text box, the content of that form and indicates that, by following the hyperlink, the traveller will receive the following information: ‘Key rights under Directive (EU) 2015/2302 … - Travellers may terminate the contract without paying any termination fee before the start of the package in the event of exceptional circumstances, for instance if there are serious security problems at the destination which are likely to affect the package. …’
10 Part B of Annex I to Directive 2015/2302, entitled ‘Standard information form for package travel contracts in situations other than those covered by Part A’, sets out, in a text box, the content of that form, and the same key rights under that directive as those set out under Part A of Annex I to that directive.
11 Articles 153 and 160 of the consolidated text of the General Law for the protection of consumers and users and other supplementary laws, approved by Royal Legislative Decree 1/2007, of 16 November 2007 (BOE No 287 of 30 November 2007, p. 49181), in the version applicable to the dispute in the main proceedings, and Parts A and B of Annex II thereto, transposes into Spanish law Articles 5 and 12 of Directive 2015/2302 and Parts A and B of Annex I thereto.
12 Article 216 of Ley 1/2000, de Enjuiciamiento Civil (Law 1/2000 on the Code of Civil Procedure) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575), in the version applicable to the dispute in the main proceedings (‘the Code of civil procedure’), provides: ‘Civil courts before which cases are brought shall dispose of them on the basis of the facts, evidence and claims put forward by the parties, save where otherwise provided by law in specific cases.’
13 Article 218(1) of the Code of Civil Procedure provides as follows: ‘Legal decisions must be clear and precise and must be commensurate with the requests and other claims of the parties, made in a timely manner in the course of the proceedings. Those decisions must contain the requisite declarations, find in favour of or against the defendant and settle all points in dispute which form the purpose of the litigation. The court, without departing from the cause of action by accepting elements of fact or points of law other than those which the parties intended to raise, must give its decisions in accordance with the rules applicable to the case, even though they may not have been correctly cited or pleaded by the parties to the procedure.’
14 On 10 October 2019, RTG purchased from Tuk Tuk Travel a package holiday for two persons to Vietnam and Cambodia, departing from Madrid (Spain) on 8 March 2020 and returning on 24 March 2020.
15 Upon concluding the package travel contract concerned, the applicant in the main proceedings paid the amount of EUR 2402 as an advance payment for the full cost of the trip which was in the amount of EUR 5208. The general terms and conditions of that contract provided information in particular about the option to terminate the contract before the departure date upon payment of a termination fee. That information did not provide for the possibility of terminating that 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 that contract.
16 By an email of 12 February 2020, the applicant in the main proceedings informed the defendant in the main proceedings of his decision to terminate the travel package contract concerned taking into account the propagation of the coronavirus in Asia, and asked the defendant in the main proceedings for the refund of all amounts to which he was entitled.
17 On 14 February 2020, the defendant in the main proceedings, replied to the applicant that, in the event of cancellation of the trip, an amount of EUR 81 would be refunded to him, after deduction of the cancellation costs. On the same day, the applicant in the main proceedings reiterated his decision to terminate the contract and challenged the amount of the cancellation costs.
18 On 4 March 2020, the defendant in the main proceedings notified the applicant in the main proceedings that it would refund him an amount of EUR 302 since the airline company responsible for the flight concerned was granting its travellers the benefit of cancellation at no cost.
19 Following that notification, the applicant in the main proceedings, without legal representation, brought an action against the defendant in the main proceedings before the Juzgado de Primera Instancia no 5 de Cartagena (Court of First Instance No 5, Cartagena, Spain), the referring court. In his application, the applicant claims that his decision to terminate the package travel contract concerned occurred almost one month before the scheduled departure date and that it is due to force majeure, namely the propagation of the coronavirus in Asia. The applicant seeks that the defendant in the main proceedings be ordered to refund him an additional amount of EUR 1500. He considers that the remaining EUR 601 correspond to the management fees incurred by the defendant in the main proceedings.
20 The defendant in the main proceedings contests that request claiming that it was still possible to travel normally to the countries of destination both on the date of termination of the package travel contract concerned and the scheduled departure date. In addition, it claims that the applicant in the main proceedings accepted the general conditions of that contract which provided that, in the case of termination, the management fees would amount to 15% of the total price of the trip concerned and that the termination fees corresponded to those applied by each of its suppliers.
21 As the parties to the main proceedings did not request an oral hearing, the case entered the deliberation stage on 22 June 2021.
22 However, by an order of 15 September 2021, the referring court invited the parties to the main proceedings to submit their observations, within a period of 10 days, on a range of questions relating, in essence, to compliance with EU law, in particular, Directive 2015/2302.
23 The applicant in the main proceedings did not submit observations in that regard. The defendant in the main proceedings reaffirmed its position that at the date of termination of the package travel contract that had been concluded, there was no reason not to take the trip in question. In addition, the applicant in the main proceedings did not ever claim a lack of information or any omission concerning his rights.
24 In the request for a preliminary ruling, the referring court is uncertain, first, as to the validity of Article 5 of Directive 2015/2302 in the light of Article 169 TFEU, read in conjunction with Article 114 TFEU, in that Article 5 of Directive 2015/2302 does not provide for the obligation, for a travel organiser, to inform the consumer of the possibility, in the event of unavoidable and extraordinary circumstances occurring, of terminating the package travel contract that he or she concluded and recovering in full the payments made. Accordingly, in the present case, the applicant in the main proceedings did not know of his right to obtain a full refund of those payments where such circumstances occur. The referring court asks therefore whether such a lack of information on the part of the consumer concerned does not make the defence of his rights and interests more difficult and all the more so because, as in the present case, he is not represented by a lawyer, and whether that lack of information does not undermine the objective relating to the attainment of a high level of consumer protection pursued by Directive 2015/2302.
25 Furthermore, the referring court asks whether it may, of its own motion, under EU law, grant the consumer the refund of all the payments made in the case of unavoidable and extraordinary circumstances occurring and significantly affecting the performance of the package travel contract concerned. Such a possibility would guarantee the objective referred to in the previous paragraph. However, that possibility fails to have regard to the fundamental principles of legal decisions under Spanish procedural law, enshrined in Article 218(1) of the Code of Civil Procedure, the principles of the delimitation of the subject matter of an action by the parties and of the correlation between the claims put forward in the action and the rulings contained in the operative part.
26 In those circumstances, the Juzgado de Primera Instancia No 5 de Cartagena (Court of First Instance No 5, Cartagena) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Articles 169(1) and (2)(a) TFEU and 114(3) TFEU be interpreted as precluding Article 5 of Directive 2015/2302 on package travel and linked travel arrangements, since that article does not include, among the compulsory pre-contractual information to be provided to travellers, the right, conferred on travellers by Article 12 of the directive, to terminate the contract before the start of the package and obtain a full refund of payments made in the event of unavoidable and extraordinary circumstances which significantly affect the performance of the package? (2) Do Articles 114 and 169 TFEU, and Article 15 of Directive 2015/2302, preclude the application of the principles of the delimitation of the subject matter of an action by the parties and of the correlation between the claims put forward in the action and the rulings contained in the operative part, which are laid down in Articles 216 and 218(1) [of the Code of Civil Procedure], where those procedural principles are liable to impede the full protection of the applicant consumer?’
27 The Czech Government challenges, in essence, the admissibility of the request for a preliminary ruling on the ground that the requested interpretation is not necessary to resolve the dispute in the main proceedings. In particular, it claims that the questions referred for a preliminary ruling by the referring court are unfounded since the fears relating to the propagation of the coronavirus in Asia raised by the applicant in the main proceedings in order to terminate his package travel contract almost a month before the beginning of his trip do not amount to unavoidable and extraordinary circumstances that occurred at the place of destination or its immediate vicinity and significantly affected the performance of the package, or which significantly affected the carriage of passengers to the destination, as required under Article 12(2) of Directive 2015/2302.
28 In that regard, it should be recalled that, in proceedings under Article 267 TFEU, which are based on a clear separation of functions between the national courts and the Court of Justice, the national court alone has jurisdiction to determine and assess the facts of the main proceedings (judgment of 27 April 2023, Legea, C‑686/21, EU:C:2023:357, paragraph 24 and the case-law cited). The Court of Justice is empowered only to give rulings on the interpretation or the validity of an EU provision on the basis of the facts which the national court puts before it (judgment of 27 April 2023, Axfina Hungary, C‑705/21, EU:C:2023:352, paragraph 28 and the case-law cited). However, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the facts of each case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, to that effect, judgments of 16 December 1981, Foglia, 244/80, EU:C:1981:302, paragraph 15, and of 7 June 2018, Scotch Whisky Association, C‑44/17, EU:C:2018:415, paragraph 22 and the case-law cited).
29 In the present case, the question of whether the facts raised by the applicant in the main proceedings in order to justify his termination of the package travel contract in question qualify as ‘unavoidable and extraordinary circumstances’, within the meaning of Directive 2015/2302, fall within the independent appraisal of the referring court. In addition, the referring court did not necessarily consider referring a question as to the scope of the concept of ‘unavoidable and extraordinary circumstances’ within the meaning of that directive, in order to resolve the dispute brought before it.
30 Accordingly, the request for a preliminary ruling is admissible.
31 By its first question, the referring court is, in essence, uncertain as to the validity of Article 5 of Directive 2015/2302 in the light of Article 169(1) and (2)(a), and Article 114(3) TFEU, on the grounds that that Article 5 does not require a travel organiser to inform the traveller of his or her right, under Article 12(2) of that directive, to terminate his or her package travel contract without paying termination fees and obtaining a full refund of payments made for that package, in the case of unavoidable and extraordinary circumstances significantly affecting the performance of the package travel contract concerned.
32 The Spanish Government and the European Commission challenge the admissibility of that question. The Commission argues that that question is hypothetical because Article 5(1) of Directive 2015/2302 provides for an obligation to inform the traveller of his or her right to terminate the contract set out in Article 12(2) of that directive.
33 In that regard, it should be recalled that the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 25 July 2018, AY (Arrest warrant - Witness), C‑268/17, EU:C:2018:602, paragraph 25 and the case-law cited).
34 By its question, the referring court asks the Court to clarify the scope of Article 5(1) of Directive 2015/2302. The interpretation of the scope of that provision is a prerequisite for the assessment of its validity. That interpretation does not involve assessing a problem of a hypothetical nature with the result that it is wrong for the Commission to claim that that question is inadmissible.
35 That said, as regards the interpretation of the scope of Article 5(1) of Directive 2015/2302, it must be noted that that provision provides that Member States are to ensure that a travel organiser communicates to the traveller, before that traveller is bound by a package travel contract, in particular, the standard information by means of the relevant form in Annex I, Part A or B, to that directive.
36 The standard information forms in Parts A and B of Annex I to that directive reproduce by means of a hyperlink or, in the absence of such a hyperlink, expressly, the key rights of which travellers must be informed. Those rights include, according to the seventh indent in Part A and Part B of that Annex I, the right of package travellers to ‘terminate the contract without paying any termination fee before the start of the package in the event of exceptional circumstances, for instance if there are serious security problems at the destination which are likely to affect the package’. That seventh indent explains and documents accordingly the content of the right to terminate the contract conferred on those travellers in Article 12(2) of that directive.
37 Therefore, contrary to the view taken by the referring court, Article 5(1) of Directive 2015/2302 does not exclude from the compulsory pre-contractual information which must be provided to travellers, that relating to the right conferred on the latter in Article 12(2) of that directive to terminate his or her travel contract before the start of the package, without payment of a termination fee, where there are unavoidable and extraordinary circumstances significantly affecting the performance of the package travel contract.
38 In the light of the scope of Article 5(1) of Directive 2015/2302, it is not necessary to respond to the referring court’s question as to the validity of that article. Since that article requires informing the traveller of his or her right to terminate the contract referred to in Article 12(2) of that directive, the question as to the validity of Article 5 of the directive in the light of Article 169(1) and (2)(a) TFEU as well as Article 114(3) TFEU, by reason of the fact that that Article 5 does not require informing the consumer of the right to terminate the contract, does not arise.
39 In the light of all of the foregoing, the answer to the first question is that Article 5(1) of Directive 2015/2302 must be interpreted as meaning that it requires a travel organiser to inform the traveller of his or her right to terminate the contract under Article 12(2) of that directive. The validity of Article 5(1) of that directive in the light of Article 169(1) and (2)(a) TFEU, read in conjunction with Article 114(3) TFEU, cannot therefore be called into question on the ground that it does not provide for informing the traveller of his or her right to terminate the contract referred to in Article 12(2) of that directive.
40 By its second question, the referring court asks whether Articles 114 and 169 TFEU and Article 15 of Directive 2015/2302 must be interpreted as meaning that they preclude the application of the principles of the delimitation of the subject matter of an action by the parties and of the correlation between the claims put forward in the action and the rulings contained in the operative part, enshrined in the provisions of the Code of Civil Procedure, where the application of the latter provisions might hinder the effective protection of the consumer acting as the applicant.
41 The Spanish Government challenges the admissibility of that question on the ground that, first, the inadmissibility of the first question necessarily implies the inadmissibility of the second question and, secondly, Article 15 of Directive 2015/2302 does not have any connection with the main proceedings. That finding must be disregarded since, for the reasons stated in paragraphs 33 and 34 of the present judgment, the first question is not inadmissible and since it is clearly apparent from the context of the second question that the reference to Article 15 of that directive is a clerical error and must be understood as referring to Article 12(2) of that directive.
42 In the light of the foregoing and taking into consideration the fact that Directive 2015/2302 was adopted on the basis of Article 114 TFEU in order to contribute to the attainment of the objective of ensuring a high level of consumer protection referred to in Article 169(1) and (2)(a) TFEU, it is necessary to reformulate the second question as referring, in essence, to whether Article 12(2) of that directive must be interpreted as meaning that it precludes the application of provisions of national procedural law enshrining the principles of the delimitation of the subject matter of an action by the parties and of the correlation between the claims put forward in the action and the rulings contained in the operative part, pursuant to which, where a termination of a package travel contract fulfils the conditions referred to in that Article 12(2) and the traveller concerned brings an action before a national court for the refund of an amount lesser than a full refund, that court cannot of its own motion grant that traveller a full refund.
43 In that regard, it should be recalled that Article 12(2) of Directive 2015/2302 provides that 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 traveller is to have the right to terminate the package travel contract before the start of the package without paying any termination fee and is entitled to a full refund of any payments made for that package.
44 EU law does not harmonise, however, the applicable procedural rules examining that right to terminate the contract. Article 24 of Directive 2015/2302 provides only that Member States are to ensure that adequate and effective means exist to ensure compliance with that directive. It follows that the detailed rules governing procedures for safeguarding the rights which individuals derive from Article 12(2) of that directive fall within the domestic legal system of the Member States, by virtue of the principle of procedural autonomy of those States (see, to that effect, judgment of 17 May 2022, Unicaja Banco, C‑869/19, EU:C:2022:397, paragraph 22 and the case-law cited).
45 Accordingly, EU law does not require, in principle, that a national court examines of its own motion a plea alleging infringement of provisions of EU law where the examination of that plea would oblige it to go beyond the ambit of the dispute defined by the parties themselves. That limitation on the power of a national court is justified by the principle that, in a civil suit, it is for the parties to take the initiative. As a result, that court is able to act of its own motion only in exceptional cases where the public interest requires its intervention (see, to that effect, judgment of 17 December 2009, Martín Martín, C‑227/08, EU:C:2009:792, paragraphs 19 and 20 and the case-law cited).
46 It is also apparent from the case-law of the Court that the national court is required to examine of its own motion whether there has been compliance with certain provisions of EU law in relation to the protection of consumers where, in the absence of such an examination, the objective of effective consumer protection cannot be achieved (see, to that effect, judgment of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 23 and the case-law cited). It follows that the effective protection of certain rights that the consumer derives from EU law fall within the public interest which requires the national court intervening of its own motion.
47 The task of the national court examining of its own motion was thus recognised, in particular, concerning the terms of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31) (judgment of 17 December 2009, Martín Martín, C‑227/08, EU:C:2009:792, paragraph 29), the terms of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) (judgment of 17 May 2022, Ibercaja Banco, C‑600/19, EU:C:2022:394, paragraph 37 and the case-law cited), and the terms of Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66 and corrigenda OJ 2009 L 207, p. 14, OJ 2010 L 199, p. 40, OJ 2011 L 234 p. 46, and OJ 2015 L 36, p. 15) (judgment of 5 March 2020, OPR-Finance, C‑679/18, EU:C:2020:167, paragraph 23 and the case-law cited).
48 In the present case, it is necessary therefore to assess whether, in order to ensure the effective protection of the right to terminate the contract that a consumer derives from Article 12(2) of Directive 2015/2302, the national court should be able to raise of its own motion the infringement of that provision.
49 In that regard, it should be noted, first of all, that that right to terminate the contract contributes towards the attainment of the objective of that directive which consists in, as is apparent from Article 1 of that directive, read in the light of recital 5 thereof, contributing to the proper functioning of the internal market and to the achievement of a high and as uniform as possible level of consumer protection when it relates to a package travel contract. Directive 2015/2302 guarantees a traveller a right that he or she could not necessarily have negotiated with the travel organiser since he or she is in a weak position with regard to that organiser concerning the power to negotiate the terms of the package. The right to terminate the contract, as with the right to a refund of payments made following that termination, conferred on travellers in Article 12(2) of that directive, meets that consumer protection objective (see, to that effect, judgment of 8 June 2023, UFC - Que choisir and CLCV, C‑407/21, EU:C:2023:449, paragraph 33).
50 Next, as noted by the Advocate General in point 54 of her Opinion, that right to terminate the contract has an important place within the scheme of Directive 2015/2302 since it is characterised as a ‘key right’ of the traveller in Parts A and B of Annex I to that directive and that, under Article 5(1) of that directive, a travel organiser is obliged to inform that traveller of the existence of that right to terminate the contract.
51 Lastly, Article 23 of Directive 2015/2302 lays down the imperative nature of that obligation. It follows that, in accordance with paragraphs 2 and 3 of that article, the traveller may not waive the rights conferred on him or her by that directive and that any term or statement made by the traveller presupposing a direct or indirect waiver of those rights are not binding on him or her.
52 In view of the foregoing, it should be held that the effective protection of the right to terminate the contract conferred on travellers in Article 12(2) of Directive 2015/2302 requires that the national court is able to raise of its own motion an infringement of that provision.
53 The examination by the national court of its own motion of the right to terminate the contract referred to in Article 12(2) of Directive 2015/2302 is nonetheless subject to certain conditions.
54 First, one of the parties to the package travel contract concerned must have brought judicial proceedings before the national court and those proceedings must have that contract as their purpose (see, concerning the examination of its own motion of unfair terms covered by Directive 93/13, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 29 and the case-law cited).
55 Secondly, the right to terminate the contract referred to in Article 12(2) of Directive 2015/2302 must be connected to the purpose of the dispute as defined by the parties in the light of their pleas in law and the forms of order sought (see, concerning the examination of its own motion of unfair terms covered by Directive 93/13, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 34).
56 Thirdly, the national court must have available all the necessary elements of law and fact necessary in order to assess whether that right to terminate the contract could be relied on by the traveller concerned (see, concerning the examination of its own motion of unfair terms covered by Directive 93/13, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 27 and the case-law cited).
57 Fourthly, that traveller need not have expressly indicated to the national court that he or she objected to the application of Article 12(2) of Directive 2015/2302.
58 In a situation where the traveller does not rely on the application of that provision whereas the conditions for it to be applied appear satisfied, it must not be ruled out that he or she did not know of the existence of the right to terminate the contract provided in that provision. It suffices that the national court is able to rely on the same provision of its own motion.
59 In the present case and subject to the assessment by the referring court, those conditions appear to be met. An action is brought by the applicant in the main proceedings before that court concerning the termination of the package travel contract that he concluded with the defendant in the main proceedings. The right to terminate the contract referred to in Article 12(2) of Directive 2015/2302 appears connected to the purpose of the dispute before that court since it concerns the refund of payments made by that applicant following his decision to terminate the contract by reason of the propagation of the coronavirus. In addition, the referring court appears to have all the necessary elements of law and of fact to assess whether that right to terminate the contract may be relied on by the traveller. As part of the referring court’s independent appraisal, it will be able to take into account paragraphs 41 to 51 of the judgment of 8 June 2023, UFC - Que choisir and CLCV (C‑407/21, EU:C:2023:449), in which the Court held in a general manner that the concept of ‘unavoidable and extraordinary circumstances’, within the meaning of Article 12(2) of that directive, is capable of covering the outbreak of a global health crisis. Furthermore, in its action before that court, that applicant does not appear to have expressly ruled out a termination on the basis of Article 12(2) of Directive 2015/2302. On the contrary, it cannot be ruled out that the applicant was unaware of the existence of that right since the travel organiser failed to fulfil its obligation under Article 5(1) of that directive to inform the applicant of that right, as it was transposed into Spanish law.
60 Where the conditions stated in paragraphs 54 to 57 of the present judgment are met, the national court is required to examine of its own motion the right to terminate the contract referred to in Article 12(2) of Directive 2015/2302.
61 That examination of its own motion requires that that court, first, in accordance with the formal requirements laid down in that regard by the national rules of procedure, informs the applicant of his right to terminate the contract as provided for in Article 12(2) of Directive 2015/2302 and, secondly, confers on that applicant the possibility of asserting that right in the judicial proceedings pending and, in the event the applicant does so, of inviting the defendant to challenge the views of the other party (see, concerning the examination of its own motion of unfair terms covered by Directive 93/13, judgment of 11 March 2020, Lintner, C‑511/17, EU:C:2020:188, paragraph 42 and the case-law cited).
62 That examination of its own motion does not therefore require the national court to terminate of its own motion the package travel contract concerned without fees while conferring on the same applicant the right to a full refund of payments made for that package. Such a requirement is not required to ensure effective protection of the right to terminate the contract referred to in Article 12(2) of Directive 2015/2302 and runs counter to the autonomy of the applicant in the exercise of his right to terminate the contract.
63 More specifically, a national court cannot be required to terminate of its own motion a package travel contract pursuant to that provision in the event that the traveller, after having been informed by that court, freely and advisedly chooses not to terminate his or her contract on the basis of that provision. Directive 2015/2302 does not go so far as compelling travellers to exercise the rights that they have under the system of protection that the directive has put in place (see, concerning the examination of its own motion of unfair terms covered by Directive 93/13, judgment of 3 October 2019, Dziubak, C‑260/18, EU:C:2019:819, paragraphs 53 and 54 and the case-law cited).
64 In the light of all the foregoing considerations, the answer to the second question referred is that Article 12(2) of Directive 2015/2302 must be interpreted as meaning that it does not preclude the application of provisions of national procedural law enshrining the principles of the delimitation of the subject matter of an action by the parties and of the correlation between the claims put forward in the action and the rulings contained in the operative part, pursuant to which, where a termination of a package travel contract fulfils the conditions referred to in that provision and where the traveller concerned brings an action before the national court for the refund of an amount lesser than a full refund, that court cannot of its own motion grant that traveller a full refund, provided that those provisions do not preclude that court from informing, of its own motion, that traveller of his or her right to a full refund and allowing that traveller to assert that right before it.
65 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.