Collective Commentary about the New Package Travel Directive

836 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE Especially as people travelling on package tours try to withdraw from their contracts without paying any cancellation compensation according to § 651h III BGB (Art. 12 No. (2) PTD), seeing as they fear to travel in Corona times and do not want to get infected with a virus that has so far proven to be an unknown quantity, and which can lead to serious health consequences and even death. In this context, scientific debate is particularly intense about the place of destination or its immediate vicinity in the event of unavoidable and extraordinary circumstances. We also have to debate how these extraordinary circumstances will significantly affect the performance of the package. The time of termination before the start of the package is also being discussed. In practice, great attention is given to the question of the due date for payment of the remaining price, a plea of uncertainty can be undertaken, a voucher solution becoming an alternative to a full refund of the payments and the problem of insolvency protection regarding the reimbursement claim 42 . 2. Theses of Prof. Führich on free termination a) The COVID-19-Pandemic, which poses a serious risk of illness and death, as well as the governmental measures taken at home and abroad to contain it, mean that the provision of package travel is seriously affected by the unavoidable and exceptional circumstance at the place of destination or during the carriage of passengers to the destination 43 . b) Package travellers and organisers can withdraw according to the indispensable, overriding special provision of § 651h BGB (Art. 12 PTD) before the start of the package, without paying any termination fee. This occurs according to a forecast at the time of the possible withdrawal, which can happen at any time between the contract and the beginning of the package, as there is a probability of 25% or more of a significant effect on the performance of the package. This is due to the decision of the BGH in the Hurricane Judgement 44 . 42 See Führich , Rücktritt vom Pauschalreisevertrag vor Reisebeginn wegen Covid-19-Pandemie, NJW 2020, 2137; Führich/Staudinger , Reiserecht, 8th ed., § 16; Staudinger/Achilles-Pujol in Schmidt , COVID-19, 2020; Löw , Pauschalreiserecht in Zeiten der CoVid-19-Pandemie, NJW 2020, 1252; Tonner , Die kostenlose Kündigung und ihre Rechtsfolgen bei Pauschal- und Individualreisen, MDR 2020, 519; Bammer/Treu , Reiserücktritt und Corona, ecolex Wien, 2020, 356; Keiler , COVID-19: Gutscheinlösungen für Reisende, Österreichisches Recht der Wirtschaft RdW 2020, 329. 43 Führich , Rücktritt vom Pauschalreisevertrag vor Reisebeginn wegen Covid-19-Pandemie, NJW 2020, 2137- -2141. 44 BGH of 15 October 2002, X ZR 147/01, NJW 2002, 3700 comment by Führich, RRa 2003, 50 and VersR 2003, 445.