The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

high degree of probability. In such a case it would be unreasonable for the organiser to stick to the contract and allow the travellers to depart although it is already clear or at least highly likely that they will not be able to take a return flight. I do not think that there can be any doubt that the possibility of a return flight is a typical precondition for taking the outward flight within a round trip booking. Such situation therefore should justify a termination of contract by the organiser on the ground of discontinuation of the basis of the transaction. 5.4. Other essential services affected According to Article 3(1) PTD, travel services under a package travel contract may include other tourist services which are not intrinsically part of carriage, accommodation or car rental. If the combination apart from the “other tourist service” does not include more than one other type of travel services out of the afore mentioned categories it only constitutes a package if the “other tourist services” amounts for a significant proportion of the value of the combination, is advertised as an essential feature or otherwise represents such essential feature 19 . Even with regard to packages including more than one service type apart from the “other tourist service” it seems appropriate to limit the application of the frustration of purpose doctrine in cases when only the other tourist services is affected by COVID-19 related bans or restrictions to scenarios in which the other tourist service is an essential feature of the package. This can be a certain event (i.e. sports event or cultural event) or a certain additional service (i.e. language course, sports instructions). If we look at the accommodation reservation contract, the situation when an event does not take place or an additional service cannot be provided because of COVID-19 related restrictions clearly reminds on the coronation cases as quoted above – under the precondition, however, that bit was the mutual understanding of both parties that the accommodation would serve the attendance of the event or the use of the particular additional service. If, for example, accommodation was booked for the purpose to attend the New Year’s Concert in Vienna and (because of COVID-19) the concert organisers are not allowed to 19 Article 3(2) PTD.