“A lack of conformity that is attributable to any other person or which is due to unavoidable and extraordinary circumstances, will not exclude the traveller’s right to receive a price reduction”, according to the opinions Advocate General Laila Medina delivered at the Court of Justice of the EU on Thursday 15 September (Case C-396/21 and C-407/21).
She considers that Directive 2015/2302, which aims to ensure a high level of consumer protection, is applicable in the context of the Covid-19 pandemic.
Thus, “if tourist operators are not able to honour the terms of a package travel contract, the pandemic does not exempt them from the obligation to reduce the price and, if it is cancelled, to provide a cash refund unless exceptional difficulties are proven to exist”.
The applicants in Case C-396/21 had booked a 14-day holiday from Germany to the Canary Islands from 13 to 27 March 2020. Due to the pandemic, their trip ended after 7 days. On their return to Germany, they demanded a proportional reduction of 70% of the price of the trip for 7 days.
The Regional Court of Munich asked the Court of Justice of the EU whether the traveller is entitled to a price reduction for non-compliance with the package travel contract, in circumstances where this non-compliance is due to restrictions imposed to prevent the spread of the virus.
Case C-407/21 concerns UFC - Que choisir and CLCV, French consumer associations, which challenged the legality of Order 2020-315 of 25 March 2020 allowing travel organisers to issue a voucher instead of reimbursing travellers in full.
At the time, more than 7,000 travel and tourism operators registered in France were in serious difficulty and would have been jeopardised by an immediate refund of all cancelled services.
Ms Medina notes that the term ‘refund’ generally refers to a sum of money that is returned to someone. Therefore, the organiser may not make a deferred payment, such as a voucher.
In her view, the amount of the price reduction to which the traveller is entitled must be appropriate, taking into account all the circumstances of the case, which it is for the national court to determine.
If a Member State encounters momentarily insurmountable difficulties in applying Union law, it should also be able to invoke force majeure on an exceptional basis. The Member State must then prove that a derogation from Union law is necessary and it must be verified that there is no alternative measure.
According to the Advocate General, the order adopted by the French government appears to go beyond what is necessary and proportionate to address the difficulties faced by travel operators. (Original version in French by Anne Damiani)