Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MICHAEL WUKOSCHITZ 195 as being beyond the control of any of the parties of a package travel contract, it may be the case that certain consequences could have been avoided if all reasonable measures had been taken (for instance, by applying stricter or earlier precautionary measures in certain hotels, restaurants or bars). As such, the pandemic will not always release parties from liability. But is not this unique and worldwide crisis even more than “extraordinary”? A similar argument brought up by Ryanair in connection with the Ash Cloud Crisis of 2010 had previously been rejected by the CJEU in an air passenger rights case. The court held that, in accordance with everyday language, the words “extraordinary circumstances” literally referred to circumstances which are ‘out of the ordinary’. If circumstances went beyond the scope of ‘extraordinary circumstances’ within the meaning of Regulation No 261/2004, due in particular to their origin and scale, such an interpretation would go against not only the meaning of that notion in everyday language, but also the objectives of that regulation 29 . Therefore, there is nothing beyond “extraordinary” like ‘super extraordinary’ circumstances which could lead to an exemption from the obligations applying in a case of extraordinary circumstances. The Coronavirus crisis consists of several factors, each of which could constitute “unavoidable and extraordinary circumstances” such as: • the risk of infection; • laws or administrative orders restricting public life at the place of destination; • laws or administrative orders restricting the provision of tourist services; or • travel bans. The issue of whether a certain package has been affected by unavoidable ‘extraordinary circumstances’ has to be assessed on a case to case basis, taking into account all its particularities. 5.1. Termination by the Traveller According to Article 12 para 2, the traveller is entitled to terminate the package travel contract without paying a termination fee in the event of unavoidable extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package. Despite the 29 CJEU 31 Jan 2013, C-12/11 McDonagh v Ryanair , recital 32.