Case C‑299/22

M.D.

v

‘Tez Tour’ UAB

(Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas)

Judgment of the Court (Second Chamber) of 29 February 2024

(Reference for a preliminary ruling – Package travel and linked services – Directive (EU) 2015/2302 – Article 12(2) – Right of a traveller to terminate a package travel contract without paying a termination fee – Unavoidable and extraordinary circumstances – Spread of COVID-19 – No official recommendation against travel – Consideration of personal circumstances relating to the individual situation of the traveller concerned – Significant consequences on the performance of the package or on the transport of passengers to the place of destination – Circumstances existing or foreseeable on the date of conclusion of the package travel contract concerned – Possibility of taking into account consequences occurring at the place of departure or return as well as at other places)

1. Approximation of laws – Package travel and linked travel arrangements – Directive 2015/2302 – Termination of the package travel contract – Right to terminate the contract at no cost – Finding of the occurrence of unavoidable and extraordinary circumstances at or in the immediate vicinity of the place of destination – Condition – Publication of an official recommendation advising against travel or an official decision classifying the area concerned as a risk area – Absence

   (European Parliament and Council Directive 2015/2302, Arts 3, point 12, and 12(2))

   (see paragraphs 31-36, 40, 44, operative part 1)

2. Approximation of laws – Package travel and linked travel arrangements – Directive 2015/2302 – Termination of the package travel contract – Right to terminate the contract at no cost – Unavoidable and extraordinary circumstances significantly affecting the performance of a package or the transport of passengers to the place of destination – Concept – Circumstances making it impossible to perform the package – Circumstances exposing the travellers concerned to risks to their health and safety during the performance of the package – Taking into account personal factors relating to travellers’ individual situations – Included – Time of assessment of the significant consequences on the performance of the package or on the transport of passengers to the place of destination – Average traveller, reasonably well-informed and reasonably observant and circumspect

   (European Parliament and Council Directive 2015/2302, Art. 12(2))

   (see paragraphs 48, 53-62, 65-72, operative part 2)

3. Approximation of laws – Package travel and linked travel arrangements – Directive 2015/2302 – Termination of the package travel contract – Right to terminate the contract at no cost – Unavoidable and extraordinary circumstances – Concept – Situation known to or foreseeable by the traveller on the date the contract is concluded – Not included – Situation that changed after the contract was signed – New situation – Included

   (European Parliament and Council Directive 2015/2302, Art. 12(2))

   (see paragraphs 74-76, 79-81, 83, operative part 3)

4. Approximation of laws – Package travel and linked travel arrangements – Directive 2015/2302 – Termination of the package travel contract – Right to terminate the contract at no cost – Unavoidable and extraordinary circumstances occurring at the place of destination or in its immediate vicinity – Significant consequences on the performance of the package or on the transport of passengers to the place of destination – Criteria for assessment – Taking account of the consequences occurring at the place of departure as well as at the various places at the start and on the return of the trip concerned – Condition – Consequences affecting the performance of that package

   (European Parliament and Council Directive 2015/2302, Art. 12(2))

   (see paragraphs 90-95, operative part 4)

Résumé

Ruling on a question referred by the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania), the Court of Justice clarifies the right of travellers to terminate a package travel contract at no cost in the presence of unavoidable and extraordinary circumstances, ( 1 ) in the context of the COVID-19 pandemic.

On 10 February 2020, M. D. entered into a package travel contract with Tez Tour under which Tez Tour undertook to organise a holiday trip for him and the members of his family to the United Arab Emirates during the period from 1 to 8 March 2020. The package at issue included, in particular, a return flight from Vilnius (Lithuania) to Dubai (United Arab Emirates) and a seven-night stay in a hotel.

On 27 February 2020, M. D. informed Tez Tour that, due to the health risk associated with the spread of COVID-19, he wished to terminate the contract. Tez Tour refused his request. As a result, M. D. brought an action before the competent courts, claiming that there were unavoidable and extraordinary circumstances at the place of destination of the tour package or in its immediate vicinity that were likely to make it impossible to perform the tour safely or to transport the passengers to the place of destination, in particular without exposing them to inconvenience or health risks. Those claims were dismissed both at first instance and on appeal.

On hearing an appeal on a point of law brought by M. D., the referring court decided to refer questions to the Court of Justice on the interpretation of the Package Travel Directive, asking it to clarify the conditions under which a traveller may rely on the existence of ‘unavoidable and extraordinary circumstances’ within the meaning of Article 12(2) of that directive, ( 2 ) in a context in which the competent national authorities had published only on 12 March 2020, and therefore after the termination, a recommendation addressed to travellers to encourage them to postpone, over the coming months, all their trips abroad, including to the United Arab Emirates, because of the COVID-19 pandemic.

Findings of the Court

In the first place, the Court notes that the finding that ‘unavoidable and extraordinary circumstances’, ( 3 ) within the meaning of the Package Travel Directive, ( 4 ) have arisen at or in the immediate vicinity of the travel destination is not subject to the condition that the competent authorities have issued an official recommendation advising travellers against travelling to the area concerned or an official decision classifying that area as a ‘risk area’. First of all, such a requirement would contradict the very nature and basis of the adoption of such recommendations or decisions, which presuppose, in principle, the existence of health or other risks likely to fall under the concept of ‘unavoidable and extraordinary circumstances’. ( 5 ) Next, such a requirement is likely to compromise the objective of harmonisation pursued by the Package Travel Directive, since the conditions for the adoption of such a recommendation or decision are not uniform in the various Member States. Finally, to require the adoption of official recommendations or decisions in this respect would be likely to make it impossible to exercise the right to terminate without cost, ( 6 ) precisely in so far as those unavoidable and extraordinary circumstances may exist independently of the adoption of any official recommendations or decisions.

In the second place, the Court rules, first, on the question of what type of circumstances fall within the concept of ‘unavoidable and extraordinary circumstances … significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination’. ( 7 ) Thus, it notes that the right to terminate a package travel contract without paying cancellation charges is not subject to the condition that circumstances have arisen which make it objectively impossible to perform the package concerned or to transfer passengers to the place of destination. To that effect, a health crisis, such as the spread of COVID-19, may, in view of the serious risk it represents for human health, be considered to have ‘[significant effects on] the performance of the package, or [on] the carriage of passengers to the destination’, regardless of the fact that it is not necessarily such as to make such performance objectively impossible.

As regards the assessment of the existence of such consequences, the Court points out that personal factors relating to the individual situation of travellers, such as the fact of travelling with young children or of belonging to a higher-risk group, are likely to have an impact on the seriousness of the consequences caused by the unavoidable and extraordinary circumstances invoked by a traveller, in so far as they are objective in nature. Those same factors can have an impact on the possibility of performing the package in question under good conditions. However, such personal factors are not sufficient in themselves to justify the traveller concerned exercising his right to terminate a package travel contract without paying a termination fee. On the contrary, those factors are relevant only when they are such as to influence the assessment of the consequences objectively attributable to the occurrence of ‘unavoidable and extraordinary circumstances’.

Accordingly, the Court concludes that the concept of ‘unavoidable and extraordinary circumstances … significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination’ of the trip in question also covers circumstances which mean that the package cannot be performed without exposing the travellers concerned to risks to their health and safety, taking into account, where appropriate, personal factors relating to the individual situation of those travellers.

Secondly, ruling on the assessment of the significant consequences for the performance of the package in question or for the carriage of passengers to the place of destination, the Court notes, first, that that assessment must be based on a ‘prediction’ as to the likelihood that the unavoidable and extraordinary circumstances relied on by the traveller concerned will have such consequences for the performance of the package. As those consequences are only definitively felt during the performance of the package, their assessment at the time of termination is necessarily forward-looking. Secondly, the assessment of such consequences must be made from the perspective of an average traveller who is reasonably well-informed and reasonably observant and circumspect on the date of termination of the package travel contract concerned.

In the third place, the Court notes that the terms ‘unavoidable and extraordinary’ ( 8 ) themselves tend to indicate that the concept of ‘unavoidable and extraordinary circumstances’ covers only situations which, on the one hand, did not exist on the date on which the package travel contract was concluded and, on the other hand, were unforeseeable. Thus, circumstances already known to the traveller concerned or foreseeable for him or her on that date cannot be invoked by that traveller under that concept and, consequently, cannot be the basis for exercising the right to terminate such a contract without paying a termination fee. As regards the assessment of a situation which existed or could be foreseen on the date of the conclusion of a package travel contract, but which is evolving significantly, it cannot be ruled out that such a situation may have undergone significant changes after the conclusion of that contract, so that it is different from the situation of which the traveller concerned was aware or which he or she could reasonably have foreseen when he or she concluded that contract. In such a scenario, those changes could give rise to a new situation, capable of meeting as such the definition of the concept of ‘unavoidable and extraordinary circumstances’.

In the fourth and final place, as regards the place where the consequences caused by unavoidable and extraordinary circumstances must occur, the Court points out that, where those consequences extend beyond the place of destination to reach, in particular, the place of departure or return or the places of intermediate stops and transport connections, they are likely to affect the performance of the package concerned. As such, they must be eligible for consideration for the purposes of applying Article 12(2) of the Package Travel Directive. In that regard, it is possible, in particular, for measures to be adopted at the place of departure as a consequence of the circumstances arising at the place of destination, such as measures consisting in subjecting travellers returning to the place of departure to restrictions, which could then form part of the assessment of the significant effects on the performance of the package travel contract concerned.

( 1 ) Provided for in Article 12(2) 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; ‘the Package Travel Directive’).

( 2 ) Under that provision ‘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’.

( 3 ) That concept is defined in Article 3, point 12, of the Package Travel Directive 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’.

( 4 ) And in particular Article 3, point 12, and Article 12(2) of that directive.

( 5 ) Within the meaning of Article 12(2) of the Package Travel Directive.

( 6 ) Referred to in Article 12(2) of the Package Travel Directive.

( 7 ) Within the meaning of Article 12(2) of the Package Travel Directive.

( 8 ) Falling under the concept of ‘unavoidable and extraordinary circumstances’, as set out in Article 12(2) of the Package Travel Directive.