Collective Commentary about the New Package Travel Directive

196 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE vague phrasing, it seems reasonable to grant travellers the right of termination even when such unavoidable extraordinary circumstances have not yet occurred, but their occurrence during the time of the package can be expected with high probability 30 . However, it does not make sense for the termination right to only become valid based on a particular percentage of probability 31 . While there may be events in which the probability of occurrence can be calculated quite accurately by using scientific methods, in cases like the Coronavirus pandemic, where there are numerous factors which can be decisive in its further development, it seems almost impossible to determine a particular percentage of probability of the occurrence of a certain situation at a specific future date. Moreover, it seems reasonable to make a distinction in regard to the particular impact of the unavoidable and extraordinary circumstances: where there is a risk of danger to life, a lower degree of probability should entitle the traveller to terminate the travel package contract than in cases, for instance, where the impact only consists of restrictions with regards to leisure activities. Whether or not a termination was justified has to be assessed according to an ex ante consideration at the time of notification of the termination, while the actual development thereafter has to be disregarded. Therefore, if a traveller declares his intention to terminate the contract because of an undisputable high probability that the performance of the package would be significantly affected by certain circumstances, the organiser cannot argue with hindsight that the package could have nevertheless been performed properly. On the other hand, if the traveller declares his intention to terminate the contract based only on a vague apprehension that there might be unavoidable extraordinary circumstances affecting the performance of the package, he cannot refer to a later development that brought about a real hazard. When the Coronavirus began spreading throughout the Chinese province of Hubei in December 2019, for a couple of weeks this was the only area where infections occurred (or at least, the only area in which they were detected). During this period, all other countries, and even other areas of China, were not affected. Therefore, during that time, there was no right to a free termination of packages to places apart from the affected province. Later on, Italy became the country most severely hit by the pandemic. However, even in early March 2020, only the provinces of Lombardy, Veneto, Piedmont and Emilia-Romagna were announced as at-risk regions by the WHO. 30 Tonner , MüKo § 651h BGB recital 44. 31 The German Supreme court (BGH) in case of a Hurricane required a probability of 1:4 (BGH 15.10.2002, X ZR 147/01).