Collective Commentary about the New Package Travel Directive

194 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE 4.4. Article 21 According to Article 21 PTD 2015, a trader shall be liable for any errors due to technical defects in the booking system which are attributable to them and, where the trader has agreed to arrange the booking of a package or of travel services which are part of linked travel arrangements, for the errors made during the booking process – but shall not be liable for booking errors which are attributable to the traveller or which are caused by unavoidable and extraordinary circumstances. In our analysis of Article 21, we are once again left confused due to the unclear phrasing of this provision: • the first sentence states that liability for errors due to technical defects in the booking system only arise if these defects are “ attributable to the trader ”; • nevertheless, the second sentence provides for an exemption from liability if the error was caused by “ unavoidable and extraordinary circumstances ”. Regardless of whether the definition is interpreted according to Article 3 para 12 or based on the CJEU’s interpretation of “extraordinary circumstances” in air passenger rights cases, can anyone think of a technical defect which was attributable to the trader – but still caused by unavoidable and extraordinary circumstances? Even if we assume the exemption would only apply to errors made during the booking process which are not due to technical defects, it still remains unclear how they could ever be caused by unavoidable and extraordinary circumstances. Regardless of the interpretation of the term “ unavoidable and extraordinary circumstances ”, the use of this term in Article 21 seems pointless as it is difficult to imagine any case in which the related exemption could apply. 5. EXCURSUS: THE ‘CORONA-CRISIS’ AND THE LEGAL CONCEPT OF “EXTRAORDINARY CIRCUMSTANCES” The Coronavirus crisis has drastically affected the travel industry by bringing worldwide travel to an almost standstill. Due to its enormous extent and nature, the disease seems to be a typical example of an event which constitutes “extraordinary circumstances”. However, while the outbreak of the pandemic and the legal and administrative measures taken in this respect can be considered