Collective Commentary about the New Package Travel Directive

1058 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE new version 34 of Book 7, Title 7(a) DCC in the Asser series seems to defend that under the old scheme in which loss of travel enjoyment was considered immaterial damage, there is no longer any right to claim compensation for damages due to loss of travel enjoyment as the new scheme solved this with the right to a price reduction. We doubt whether this is actually the case. We did not notice anything to this end in the meetings with both the Ministry and stakeholders we attended. In addition, we believe that when a lower-quality (or shorter) trip is offered as an alternative to the original trip which was unable to take place and the traveller is offered a price reduction, he still may suffer a loss of travel enjoyment as he is offered a less-quality (or shorter) trip and have an additional right to immaterial compensation for damages. 6.2. Force majeure As the Directive, the Act has a definition that deviates from the regular definition of force majeure from Article 6:75 DCC. The Act refers to non-conformity due to “unavoidable and extraordinary circumstances” (Article 7:511(2) DCC in conjunction with Article 7:500, “ I ” DCC). In this case, the organiser will not owe any compensation for damages to the traveller, but both the traveller and the travel organiser will have the right to terminate the travel agreement (Article 7:509(3) and (5)(c) DCC) 35 . The phrase “unavoidable and extraordinary circumstances” is a special interpretation of the definition of force majeure pursuant to the Directive. The definition of force majeure from the old Act on Travel Agreements and the old Directive on package travel (“the old Directive”) 36 differed. At the time, force majeurewas, to summarise, definedas “abnormal andunforeseeable circumstances”. Even though the current Act (and the Directive) no longer verbatim contains the term “force majeure”, the definition of “unavoidable and extraordinary circumstances” looks like the former definition of force majeure (“abnormal and unforeseeable circumstances”). The question is what this change to the definition of force majeure intends to achieve. On the one hand, the current Act (and the Directive on which the Act is based) seems to impose slightly higher requirements before anyone can invoke a situation of force majeure compared to the previous Act (since circumstances are more likely to be “abnormal and unforeseeable” than 34 Asser/Tjong Tjin Tai 7-IV2018/533. 35 If the agreement is terminated, the organiser must refund the full travel fee within 14 days (7:509(7) DCC). 36 Directive 90/314/EEC.