Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MICHAEL WUKOSCHITZ 199 which is attributable to the traveller and therefore the right to price reduction even applies in regard to a lack of conformity caused by unavoidable and extraordinary circumstances 34 , the traveller is not entitled to compensation for damages if the lack of conformity was due to unavoidable and extraordinary circumstances. However, the burden of proof is on the organiser who must produce relevant evidence on how the unavoidable and extraordinary circumstances affected the provision of services and caused this lack of conformity. On the other hand, the burden of proof on the traveller is to show that the damages arose as a result of the respective lack of conformity. Not all damage suffered as a result of the Coronavirus crisis will therefore necessarily trigger liability of the organiser, but only those damages which were suffered by the traveller due to lack of conformity. 5.4. Impossible Return Article 13 para 7 PTD 2015 provides for an obligation of the organiser to bear the costs of necessary accommodation of the traveller (for a period not exceeding three nights) “ as long as it is impossible to ensure the traveller’s return as agreed in the package travel contract because of unavoidable and extraordinary circumstances ”. While it seems clear that this provision applies in cases where the organiser, because of restrictions imposed as a reaction to the Coronavirus pandemic, cannot provide the passenger’s carriage to the place of departure (or any other place agreed as the destination for the traveller’s return), it remains unclear whether the organiser’s respective obligation also applies when they are still capable of providing the agreed carriage, but the traveller is prevented from using it because of, for instance, being put into quarantine. At least if such quarantine was caused by the traveller’s own behaviour (e.g. by not observing local administrative orders or official recommendations), it seems inappropriate to burden the organiser with (additional) accommodation costs. Likewise, if the traveller cannot use the carriage provided by the organiser because of being subject to an immigration ban imposed by the country of departure. This interpretation is supported by the fact, that the organiser’s obligation to provide assistance to a traveller in difficulty 35 basically consists of the provision 34 See Austrian Supreme Court (OGH) judgments of 30 Jan 2007, 10 Ob 2/07b (related to the Tsunami devastations in Thailand in 2004) and of 25 Apr 2019, 5 Ob 1994/18t (related to an earthquake which forced the organiser to desist from the Mount Everest expedition which had been part of the package). 35 Article 16 PTD 2015.