Collective Commentary about the New Package Travel Directive

ARTICLE 21 | SARAH PRAGER 465 the defence is enshrined within Article 21 and will prevent the traveller from making any attempt to impose liability on the trader in these circumstances. It is thought that the second defence contained within Article 21 is likely to be of more relevance to traders against whom proceedings are brought for booking errors. They will escape liability if and to the extent they can show that the error was caused by unavoidable and extraordinary circumstances. The wording used is conjunctive rather than disjunctive, so that the trader must show that the relevant circumstances were both unavoidable and extraordinary. Experience in the context of other European legislation has shown that in practice this will be extremely difficult to prove. Article 3(12) of the new Directive is the starting point when considering this defence to Article 21. It defines unavoidable and extraordinary circumstances as meaning “a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken”. This reaffirms not only that the situation must be beyond the control of the trader, but the consequences of it must have been unavoidable even if all reasonable measures had been taken. Again, it is difficult to envisage a situation beyond the control of the trader which he could have avoided had he taken all reasonable measures. However that may be, on the face of it the defence can only be proven where the error occurred outside the control of the trader, and which was unavoidable. As indicated, it will in practice be extremely rare for a booking error to fall within this category. To take the two different forms of error in turn, first, a defect in a technical system attributable to the trader will, it is suggested, almost never be beyond the control of the trader, since the system will be within his control. Furthermore, such glitches can be guarded against by way of upgraded software, so that it would be very difficult to show that no reasonable amount of software testing, analysis and upgrading would have prevented the error from occurring. The defence will be of more relevance in cases involving the second type of booking error envisaged by Article 21, an error made during the booking process. In this case, it will be recalled, the trader will be liable even for the acts and omissions of other providers in the course of their booking processes. This would take them outside the control of the trader, thus partially satisfying the requirements of the defence. However, the trader would then have to go on to show that the error could not have been avoided even if all reasonable measures had been taken. It might be thought that a trader could manage this relatively