Description of facts
The procedure was the subject of a request for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union (Journal of Laws C of 2016 No 202, p. 47; hereinafter: TFEU), a preliminary ruling by the ultimate Court of Lithuania in the dispute between M. D. a Tez Tour UAB the raised by M.D. the right to terminate without charge the travel package agreement concluded with that company due to the wellness risks associated with the spread of COVID-19. 10.2.2020 M.D. concluded with the company Tez Tour the package travel agreement, in which the company undertook to organise a vacation journey to the United arabian Emirates from 1 to 8.3.2020. This Agreement M. D. paid the company a monetary amount of EUR 4 834. 27.2.2020 M.D. informed the company that it wanted to terminate the aforementioned package travel agreement and asked it to let it to usage the amount paid for another journey at a later date erstwhile the wellness risks associated with the spread of COVID-19 would be reduced. The company refused to accept the application.
The requests were dismissed both at the first instance and in the appeal procedure, as, according to the competent Lithuanian courts, nothing allowed to recognise the circumstances cited M. D..for a higher power. They say M.D. has booked his journey, although there has already been information demonstrating the application of safety measures and, on the another hand, on the date of termination of the contract, the level of hazard associated with that journey has not changed.
Position of the referring court
When examining the appeal M.D., the ultimate Court of Lithuania noted that for the intent of resolving the dispute in the main proceedings, it is appropriate to specify the conditions under which a traveller may trust on the existence of ‘inescapable and exceptional circumstances’ within the meaning of Article 12(2) of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25.11.2015 on tourist events and related tourist services, 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 L 316, p. 1) in the context of the COVID-19 pandemic.
In this context, the referring court sought, first, to find whether it was essential for the authorities of the country of departure or destination to issue an authoritative informing to discourage travel which is not necessary, or whether the country of destination of the journey afraid should be regarded as a ‘risk area’. Second, the referring court assumes that in order to establish the existence of unavoidable and exceptional circumstances which importantly affect the implementation of the package, their effects must be likely for the average traveller on the basis of an assessment made by means of a forecast, taking into account the dates of the planned journey, the actual data available to the traveller afraid and the published information.
In the assessment of the referring court, unavoidable and exceptional circumstances may besides be established where it is hard to implement this package under safe and acceptable conditions, taking into account subjective factors specified as the wellness of that traveller. The referring court besides noted that speeding up the dynamics of infections between the date of booking of the applicable journey and the date of termination of the contract was obvious.
TEU position
In interpreting Union legislation, in peculiar Article 12(2) of Directive 2015/2302/EU, the TSEU indicated that the exercise by a traveller of the right to terminate a package travel agreement without being charged a fee for the termination of the package only depends on the occurrence at the destination or in its immediate vicinity of nonsubjective circumstances which may affect the performance of the package. On the another hand, it cannot be argued from these provisions that, in order to be able to find the occurrence of unavoidable and exceptional circumstances, it is essential for the competent authorities to issue an authoritative advice to discourage travellers from visiting the applicable area or an authoritative decision recognising the area as an endangered area. Tthe request would be contrary to the nature and the very basis for specified recommendations or decisions, which, in principle, presuppose that there are already nonsubjective circumstances causing a hazard to wellness or another risks. In addition, the conditions for specified a advice or decision are not uniform in the different associate States and could so depend on the differences between those countries. Thus, the explanation of Article 12(2) of Directive 2015/2302/EU that a uncovering of unavoidable and exceptional circumstances within the meaning of that provision would be subject to the adoption of those recommendations or decisions may jeopardise the attainment of the nonsubjective of harmonisation pursued by that Directive.
In addition, that provision does not make the right to terminate the package travel contract without charging for termination conditional on the fact that there have been circumstances which make it objectively impossible to implement the package or to transfer passengers to their destination. On the contrary, according to their usual meaning in colloquial language, this wording clearly has a broader scope including not only the effects which exclude the anticipation to implement this package, but besides the effects which importantly affect the conditions for the implementation of this package.. Consequently, the wellness crisis, specified as the spread of COVID-19, can, due to the serious hazard it poses to human health, be considered to be circumstances which importantly affect the implementation of the package or which importantly affect the transport of passengers to the destination within the meaning of the first conviction of Article 12(2) of Directive 2015/2302/EU, regardless of the fact that it objectively does not not necessarily prevent that implementation. What's more, personal factors relating to the traveller should not be disregarded in this assessment. Such factors may affect the importance of the effects caused by the unavoidable and exceptional situation referred to by the traveller and thus the anticipation of the applicable package being carried out in convenient conditions, as agreed between the organiser of this package and the traveller. In this regard, as regards, in particular, the wellness crisis, specified as the spread of COVID-19, the effects it can have on the implementation of this package may vary depending, for example, on the wellness of the travellers concerned. The protection nonsubjective of the Directive besides covers travellers in a more hard situation.
At the same time, the CJEU indicated that, in principle, the circumstances already known to the traveller or foreseeable for him at the date of conclusion of the package travel agreement cannot justify the exercise of the right to terminate specified an agreement without the payment of the termination fee. However, it cannot be excluded that these circumstances will be affected after the conclusion of a crucial change in the contract, so that it will be different from what the traveller afraid knew or could reasonably have foreseen erstwhile the agreement was concluded. In doing so, account should be taken of the effects at the place of departure, as well as of the various places related to the start and return of the applicable journey, if these effects affect the implementation of this package.
Comment
The subject substance of the preliminary ruling was the issue of the abandonment of tourism services due to the pandemic situation. The problem afraid how widely the inevitable and extraordinary circumstances which importantly affect the implementation of the package, i.e. how formal the emergency situation must be in order to recognise the appropriateness of the cost-free termination of the contract.
The TEU considered that the recommendations and decisions made by authorised state authorities in relation to the epidemiological hazard cannot be identified with the existence or absence of that risk. There may be regardless of any authoritative recommendations or decisions. However, more importantly, the TEU considered that, unless the circumstances justifying the termination of the contract should in rule happen on the date of its conclusion, the situation in which these circumstances occurred cannot be excluded, but their severity was negligible, and due to the evolutionary nature of the situation after the conclusion of the contract, there will be crucial changes to the situation resulting in a fresh 1 that corresponds to the definition of "inescapable and extraordinary circumstances".
