The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

We will certainly deal with several claims brought before our domestic Courts, which will raise the issue of infringements of European Regulation No. 261/2004, as well as the issue of whether the self-declared overriding mandatory provision of Art. 88 bis , paragraph 4 conflicts with such regulations. Indeed, we will have to wait for the domestic Courts to stay the proceedings in order to ask the European Court of Justice for a preliminary ruling on the issue. However, we have to consider that denying the carriers the possibility to choose between the voucher and the reimbursement, could jeopardise the activity of the carrier itself: the carriers’ bankruptcy would harm passengers themselves, as they would end up not receiving money nor vouchers. In such cases, the passengers’ rights would certainly not be protected either. Therefore, we have to answer the question as to what is the interest protected by the Italian emergency provisions described above. The author believes that in a foreseeable and already difficult aviation market, in a difficult moment for the tourism industry, which represents an important resource for our country, these provisions do have a public impact. Moreover, not only is the carriers’ operativity at stake but also, for the short-medium term, competition would decrease with the consequence that prices would increase and less profitable routes would likely be eliminated with a clear further prejudice for all passengers. In this respect, it is interesting to remind that very recently, national airlines of twelve Member States addressed, through the respective Ministers of transport, a very significant request to the EU Commission. The request consisted of the possibility to temporarily derogate Regulation No. 261 and to have the possibility of issuing vouchers instead of reimbursing passengers with cash. The letter reads that the goal of the EU and of its Member States should be to preserve the structure of the European market and the aviation sector, beyond the current crisis, by considering and balancing, at the same time, the interests and the necessary protection of the passengers. Providing for the temporary emission of vouchers is possible and acceptable for consumers, provided that certain key principles are followed: transparent information to passengers; nondiscrimination; common and uniform duration of the vouchers; and maximum flexibility as to their use and a clear right to reimbursement, at the end of the validity period of the voucher, in cases in which the voucher is not used. As of today, we are not aware of any reply by the Commission. In conclusion, such initiative confirms that the only possible way to deal with the current emergency is that the EU Member States take common and shared solutions in order to balance the interests of the sector and that of the passengers.