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

In such circumstance, carriers had taken the possibility to opt for the voucher solution as a way to avoid, or at least postpone, potential insolvency issues, also for those cases not disciplined by the Regulation No. 261, i.e. cases in which the passenger himself decides to withdraw. It is important to mention that, before the entry into force of Art. 28, according to Art. 945 of the Navigation Code, the passenger whose departure becomes impossible for reasons not depending on his will or fault has the right to terminate the contract and to receive reimbursement of the price paid – no words on the possibility to offer vouchers. The idea of issuing a voucher, instead of the reimbursement of the price in cash, could entail a conflict with Art. 945 NC. However, the provisions contained in Art. 28, and today those in Art. 88 bis , are self-proclaimed overriding mandatory rules, which have the effect of being applicable to the situation, irrespective of the content of applicable law. Overriding mandatory provisions are defined by Art. 9(1) of the Rome I Regulation such as “ provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation ” 7 . Regarding Art. 945 NC, which certainly would be more favourable to travellers by recognising the right to receive reimbursement, it could be said that the respect of Art. 28 (as modified by Art. 88 bis in its paragraph 3) should be considered as falling under the scope of the above-cited Art. 9(1): the (private) interest in preserving the aviation market and minimising the risk of insolvency for carriers has a public impact as well. On the other hand, concerning the newly introduced paragraph 4, which recognises to carriers the right to cancel their flights and issue a voucher in return, the nature of overriding mandatory provision and the possible infringement of Regulation No. 261/2004 will be discussed in the next paragraph. One of the main claims of passengers with respect to voucher is the serious doubt to be able to plan a trip in the next 12 months given not only the pandemic situation but especially the economic situation and the crisis that many of them are likely to cope with. In other words, what will happen if the passenger is not in the position of planning a trip in the next 12 months? Moreover, will the carrier still be operational and economically in the position of flying in the next 12 months? If not, passengers who received the voucher shall suffer prejudice if the carrier does not give them the possibility of converting the voucher, at the expiry date, into cash. In light of these issues, carriers could follow the footsteps of some Italian tour operators who started to issue so-called “multi- purpose voucher”, in the sense that the credit represented by the voucher can be used by the traveller for flights or travels that are different from the ones originally scheduled and not enjoyed. Also, we are assisting to the frequent possibility of fractioning the voucher, in cases of high amounts with the possibility of using it for two or more trips, flights, etc. Such practices could undoubtedly help passengers plan different (and maybe more affordable) trips, in terms of time needed, within 7 Overriding mandatory provisions are defined by Art. 9(1) of the Rome I Regulation, such as “ provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation ”. This definition is based on the judgement of the ECJ in joined cases C-369/96 and C-376/96 (judgement of the Court of Justice of 23 November 1999, Jean-Claude Arblade and Arblade&Fils SARL, C-369/96 and Bernard Leloup, Serge Leloup and Fofrage SARL – C-376/96).