Collective Commentary about the New Package Travel Directive

720 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The new rules of the TSA on the termination of the package travel contract are different from the rules that used to provide for the termination of the package travel contract under the Obligations Act. A major difference is reflected in the fact that the Obligations Act recognised the traveller’s and the organiser’s right to terminate the contract for some extraordinary circumstances even after the performance of the package had already started and not only before its commencement 95 . Under the new rules, a termination of a package travel contract for extraordinary circumstances, after it has already been completed, is possible only on the basis of the provisions of general contract law on the termination or alteration of the contract for extraordinary circumstances ( clausula rebus sic stantibus ) 96 . 3.5. The right of withdrawal A traveller can exercise his or her right to withdrawal at any time before the start of the package together with an obligation to pay the organiser an appropriate and justifiable fee 97 . The right to withdrawal is exercised without specifying the reasons for it. If a contract is concluded outside the organiser’s business premises, the traveller is entitled to cancel a package travel contract within 14 days from entering into it without specifying any reasons for the cancellation 98 . The new rules on the traveller’s right of withdrawal have narrowed down the scope of the travellers’ rights if compared with the right of withdrawal as laid down in the Obligations Act. Former rules, on the one hand, distinguished a timely withdrawal from the contract from an untimely withdrawal prior to the performance of a package depending on whether a traveller had withdrawn within due time determined in accordance with the type of package. On the other hand, there was a possibility to withdraw from a travel package contract after it had already started, and in that case, an organiser was entitled to the full 95 Former Art. 901, para. 5, former Art.902., para.1 OA. 96 Art. 369 OA. Pursuant to Art. 369 OA, termination of a contract is allowed only if extraordinary circumstances arise after the conclusion of the contract. The circumstances are considered as extraordinary if it was impossible to foresee them at the time of the conclusion of the contract, making them excessively onerous for one party to perform, or if under such circumstances a party would suffer an excessive loss as a result of the performance. It is not possible to request termination or alteration of the contract if that party was obliged to take into consideration such circumstances at the time of the conclusion of a contract, or if it could have avoided or overcome them. The alteration or termination of the contract is not allowed if a change of the circumstances occurred after the expiry of the period for the performance of the contract. 97 Art. 37, paras 1-5 TSA. 98 Art. 37, para 9 TSA.