Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MICHAEL WUKOSCHITZ 197 It is therefore assumed that at that time there was no right to a free termination with respect to packages to Sicily or Naples, which cannot be regarded as being in the “immediate vicinity” of the aforementioned provinces. To avoid untimely terminations of package contracts, the Austrian Supreme Court held that in case of a probable occurrence of extraordinary circumstances at the place of destination, which could significantly affect the performance of a package to start at a rather distant time, the traveller should wait for further developments before declaring the termination of the contract 32 . The traveller can also terminate the package contract if the unavoidable and extraordinary circumstances affect the carriage to the destination. This would mostly be valid in the case of the Coronavirus because of laws and administrative orders restricting the provision of transportation services. In Article 11 para 2, travellers are entitled to another cancellation right in which they are entitled to terminate the contract without paying a termination fee if, before the start of the package, the organiser is constrained to alter significantly any of the main characteristics of the travel services. Within the period when certain parts of the world were affected by the pandemic and certain restrictions applied, but travelling was still possible, these restrictions could have forced organisers to alter main characteristics of their travel services, such as the itinerary of a cruise. In this case, travellers were entitled to terminate the contract regardless of whether the destination or its immediate vicinity were affected by the pandemic or at least likely to be affected during the time of the package. 5.2. Termination by the Organiser Article 12 para 3 allows the organiser to terminate the package travel contract if they are prevented from performing the contractual services because of unavoidable and extraordinary circumstances. As mentioned above, there is no requirement of these circumstances to occur at the destination or its immediate vicinity. The mere fact that they prevent the organiser from the (proper) performance of the services contained in the package triggers the organiser’s termination right. Even prior to the virus spreading around the world, legal or administrative restrictions connected to the fight against the pandemic began preventing organisers from performing their services, and forcing them to terminate related package travel contracts. 32 OGH 26 Aug 2004, 6 Ob 145/04y.