Collective Commentary about the New Package Travel Directive

800 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE exonerated of all or part of his responsibility if he proves that the damage subject of the complaint is attributable either to the traveller or to a third party outside the supply of the services, whose character is unpredictable and unavoidable or due to unavoidable and extraordinary circumstances (Articles L. 211-14-III, L.211-16-I repeated in L. 211-17-III). THE NEW NOTION OF UNAVOIDABLE AND EXTRAORDINARY CIRCUMSTANCES From now on, the notion of force majeure , whose jurisprudential definition sometimes fluctuates around the externality (which disappeared in the new article 1218 of the Civil Code, which defines force majeure as the event beyond the control of the debtor, reasonably unpredictable at the time of the conclusion of the contract and whose effects are unavoidable despite the taking of appropriate measures ), unpredictability at the time of the conclusion of the contract and finally irresistibility , is removed from the Tourism Code. We are now talking about “ unavoidable and extraordinary circumstances ”. It is likely that the assessment of the French judges will change, in particular because reference will no longer be made to the unpredictability of the event at the time of the conclusion of the contract: it will be a question of assessing cumulatively the exceptional character of an event at the time it occurs, by its magnitude and nature, as well as its unavoidable character for the professional. It will take into consideration that even in attempting to take appropriate and reasonable measures, they could not avoid the consequences of the relevant event. We find the same notion, by reciprocity, for the benefit of the traveller, who can also invoke the unavoidable and extraordinary circumstances that affect his trip before it begins, to resolve his contract (article L. 211-14-II). In addition, the limitations imposed by international conventions governing the conditions of compensation, which travel service providers have to follow, benefit the professional organiser or retailer. In the absence of international agreements, it is now possible – except for bodily injury, intentional injury or negligence – to limit compensation to three times the total price of the contract, which did not previously exist in French tourism law. Finally, we should mention the biennial prescription (except for bodily harm), which is newly applicable to package and travel claims, and which creates a procedural logic with the recourse for liability against air carriers in particular.