Collective Commentary about the New Package Travel Directive

NETHERLANDS | NICK DE LEEUW | JUDITH TERSTEEG | FRANK RADSTAKE 1059 “unavoidable and extraordinary”). On the other hand, the new Act requires that the organiser no longer takes “all” measures, but only “reasonable” precautionary measures in order to prevent such circumstances. However, jurisprudence does not directly show that the change to the Act (and the Directive) intends to make the definition of force majeure any stricter or less strict. In addition, the terminology used also deviates from the definition of force majeure in the Denied Boarding Compensation Regulation (“the Regulation”) 37 , which concerns compensation for travellers if they are denied a seat (overbooked), in case of flight delays or if a flight is cancelled. This Directive does refer to extraordinary circumstances. Perhaps, the authors of the Directive attempted to make it more in line with the terminology of the Regulation. Since the definition of force majeure in the Act on Travel Agreements (both the former and current Acts) deviates from the regular general definition of force majeure as set out in Article 6:75 DCC, we believe that a situation of force majeure may not easily occur in practice. The organiser of the trip has the burden of proof concerning the “unavoidable and extraordinary circumstances”. Taking into account case law of the European Court of Justice in the context of the DBC Regulation on the definition of “extraordinary circumstances”, a situation of “unavoidable and extraordinary circumstances” within the meaning of this Act will not easily exist. Specific examples are disasters, like natural disasters (forest fires, floods, earthquakes, etc.), war or any other serious safety issues (such as terrorism, major health risks, etc.). These are circumstances that cannot be controlled by either party and which consequences cannot be avoided. By and large, the fact that the terminology used in legislation governing the travel sector on the definition of “force majeure” is not consistent and uniform cannot be commended. Since the Directive aims to achieve the greatest level of harmonisation, the Dutch legislator had little choice but verbatim use the phrasing of “unavoidable and extraordinary circumstances”. This phrasing is not present in the regular definition of force majeure of Article 6:75 DCC and is, in fact, an interpretation of the circumstances based on which the situation of force majeure must be borne by the organiser according to common opinion. Travel organisers cannot easily invoke a situation of “force majeure” and the interpretation leans towards a certain liability for the risk in practice. If the organiser cannot arrange the timely repatriation of travellers from their travel destination due to unavoidable and extraordinary circumstances (such as 37 Regulation (EC) no. 261/2004, PbEU 2004,L46/1.