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

2.1. The voucher as a means of reimbursement Even in the original version of Art. 28, the choice of issuing a voucher is stated as an alternative way to perform the obligation deriving on the carrier from the conclusion of the transport contract, and it has been construed accordingly, thus leaving it to the carrier the right to choose among the alternative options (reimbursement or voucher), in order to duly perform the repayment obligation 6 . Such construction has been confirmed by Art. 88 bis , paragraph 12, which states “ The emission of the vouchers provided for in the present article, fulfils the reimbursement obligations and does not require any form of acceptance by the recipient ”, so confirming that the choice to issue the voucher falls within the concept of alternative obligation. Indeed, the wording and the idea of providing for a voucher represented a way for the legislator to balance the interests of both parties: on one side, the travellers who were risking to lose their money due to the impossibility to leave their homes, and, on the other, the carriers – and the tourism industry in general –, whose survival was, and still is, in serious jeopardy. It is also certain that, as mentioned, Art. 28 was originally enacted, at the very beginning of the spread of the virus, as an emergency tool to minimise the consequences of the restrictions to travel for the limited portion of citizens who fell under the definition provided for in paragraph 1. Since 9 March, when the lockdown had been extended to the whole national territory, and basically the whole world had suspended entrance to foreigners in their respective territories, we cannot treat the provisions of Art. 28 – and those of Art. 88 bis of course – as “emergency” provisions, with the consequences that will be discussed later. Soon after the entry into force of Art. 28, some carriers, especially non-national carriers, were reluctant to reimburse passengers who could no longer fly or to issue vouchers in their favour, in those cases in which the contracts could still, in theory, be performed because carriers had not cancelled the flights. So the Italian National Authority for Civil Aviation (ENAC) sent out a note to the major touristic operators and carriers, in which it was specified that the right to reimbursement or to receive a voucher was to be granted by carriers, independently from the carrier’s nationality, being sufficient that carriers were flying to and from Italy. ENAC also informed that refusal to comply with the reimbursement obligations under Regulation No. 261/2004 could trigger sanctions, as provided for in the Regulation itself. It goes without saying that due to the global spread of the COVID-19 and due to containment measures all over the world, passengers are currently unable to fly, and carriers are being forced to cancel thousands of flights every day with the outcome that there are millions of passengers that are not flying as planned. Many carriers today risk their business, and millions of jobs are in jeopardy, with an estimated amount of damages for the aviation sectors approximately at 25 billion euros. 6 According to Italian law, particularly Art. 1285 of the Civil Code, “ the debtor of an alternative obligation can be released by performing one of the two obligations but he cannot oblige the creditor to accept partial performance of either two ”. Moreover, according to Art. 1286, “ The right to choose [which of the two obligations to perform ] lies on the debtor, if not attributed to the creditor ”. Regarding packages, which will not be dealt with in this article, Italian associations of travel agencies and tour operators were very firm in claiming that the choice of offering the reimbursement or voucher lied exclusively on the organiser or seller or carrier. Such statement and such construction led, of course, to a massive offer of vouchers at every level, as well as to claims before the Antitrust Authority for unfair competition practices.