INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW (Im)possibility of performance of package travel and ex ante assessment However, not all post-pandemic CJEU’s and AG’s contributions to the concept of ‘unavoidable and extraordinary consequences’ issued so far have been included in the Proposal. To start with, in case C-299/22, the question arose as to whether unavoidable and extraordinary consequences can be established only where the package travel is objectively impossible or also where it is theoretically possible but complicated and/or economically inefficient under safe conditions. In this case, the applicant concluded a package travel contract on 10 February 2020 for the travel with his family to the United Arab Emirates from 1 March to 8 March 2020. Due to the COVID-19 risk, he wanted to terminate the contract on 27 February 2020, but his request was rejected by the travel organiser. In the subsequent judicial proceedings, the applicant claimed that the trip was not objectively impossible but that there was serious doubt regarding the safety of its performance. In her Opinion, AG Medina considered that the rights conferred by the Directive followed by unavoidable and extraordinary circumstances exist not only when the performance is impossible but also when it “entails significant risks to a traveller’s health and safety”28. However, this risk should be assessed on subjective and individualised basis29 and its prediction should be based on ex ante assessment. Although it has been established in German case law (more precisely in case Hurikan George30) that there should be an at least 25% likelihood that unavoidable and extraordinary circumstances will occur and affect the package travel, AG Medina explicitly refused such approach. Instead, she favours a more flexible approach according to which it is decisive that the traveller should reasonably expect at the time of termination that there is sufficiently high probability that such circumstances will significantly affect the performance of the package. In its judgment, the CJEU reiterated this interpretation, thereby emphasising that personal factors relating to the individual circumstances of the traveller should be taken into consideration in the determining the impact of unavoidable and extraordinary circumstances on the performance of contract.31 Moreover, the Court held that when assessing the existence of such circumstances, the time point relevant for their assessment is – as stated by AG Medina – necessarily the date of termination of contract.32 28 Para. 47 of the Judgment. 29 Para. 44 of the Judgment. 30 Judgment of BGH of 15 October 2002, published in: NJW 2002, 3700. 31 Para 62 of the Judgment. 32 Para. 66 of the Judgment.
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