Collective Commentary about the New Package Travel Directive

ESTONIA | IRENE KULL 771 conditions applicable to that contract. Right to transfer the package travel contract is provided in the § 873(1) of the LOA. Unlike the Directive, Estonian law gives the passenger the right to choose whether to notify the transfer of the contract to the tour operator or the retailer. 3.5. Termination of the travel package contract before the start of the package The rules concerning the right to terminate the travel package contract before the start of the package can be found in the § 874 of the LOA. The Directive distinguishes between the right of the passenger to withdraw from the contract at any time, whatever the reasons are, the right to withdraw in the event of extraordinary circumstances and the right to withdraw from the package contract in the case of off-premises contracts within a period of 14 days without giving any reason. The Art. 12 of the Directive was transposed verbatim into the § 874 of the LOA with the exception of the right to withdraw from the package contract in the case of off-premises contracts. As a result of stakeholder consultation, the view that extending the consumer’s right of withdrawal to package travel contracts would be unreasonably burdensome for tour operators and disproportionate to the potential benefits to the traveler received overwhelming support. The transposition of the right of the tour operator to terminate the package travel contract in case of unavoidable and extraordinary circumstances provided for in Art. 12(3)(b) of the Directive raised the question of compatibility of terms “unavoidable and extraordinary circumstances” and “force majeure”. According to § 103(2) of the LOA, force majeure means circumstances which are beyond the control of the party to the contract and which, at the time the contract was entered into, could not reasonably have been expected to take into account, avoid or overcome the impediment or the consequences thereof which could not reasonably have been expected to overcome. Art. 3(12) of the Directive defines “unavoidable and extraordinary circumstances” as situations 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. It seems reasonable to conclude that more detailed definition of force majeure transposed into Estonian law from the Art. 79 of the CISG 31 may provide less protection to travellers in comparison the protection provided for by the Directive. 31 United Nations Convention on the International Sale of Goods (CISG). Adapted 11 April 1980, in force 1 January 1988. Available at: https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/v1056997 -cisg-e-book.pdf (2.08.2019).