Member States cannot invoke the Covid-19 pandemic as a case of force majeure to release package tour operators, even temporarily, from the reimbursement obligation laid down European Union law, ruled the Court of Justice of the EU (CJEU) in a judgment delivered on Thursday 8 June (cases C-407/21 and C-540/21).
In France, two consumer protection associations are challenging a government order, adopted in the context of the Covid-19 pandemic, authorising travel organisers to issue a voucher valid for 18 months and giving no right to reimbursement of payments already made until the voucher has not been used. According to the French government, this derogation from the directive (2015/2302) governing package travel was intended to protect the solvency of the tourism sector.
In its ruling, the Court stresses that EU law aims to ensure a high level of consumer protection, and that refunds in the form of money are best suited to achieving this. It notes that the directive in question does not envisage the possibility of replacing the obligation on tour operators to reimburse payments made within two weeks of the cancellation of a package holiday, for example by issuing vouchers.
However, travellers may voluntarily accept reimbursement in the form of vouchers.
The European Court considers that the Covid-19 pandemic is likely to fall within the unavoidable and extraordinary circumstances in respect of which the directive prescribes full reimbursement. But it refutes the French government’s argument that the pandemic also constitutes a case of force majeure going beyond what was envisaged when the directive was adopted and allowing the contested French legislation to be adopted.
According to the Court, the conditions of force majeure are not met in the present case as: - the French order does not take into account the individual financial situation of the tour operators; - the effects of said regulation are not limited to the period strictly necessary to remedy the difficulties caused by the pandemic; - the negative financial impact on the sector could have been avoided by granting State aid.
The CJEU states that the national court hearing the case does not have the power to alter the effects of a decision annulling the disputed regulation.
C-540/21. Furthermore, in a similar case, the Court followed, in essence, the previous reasoning by stating that Slovakia, by adopting a legislative amendment which temporarily deprives travellers of their right to cancel a package travel contract and receive a full refund, has failed to fulfil its obligation under EU law.
View the Court’s judgment: https://aeur.eu/f/7dw (Original version in French by Mathieu Bion)