REVISION OF THE EUROPEAN PACKAGE TRAVEL DIRECTIVE Foreseeability of unavoidable and extraordinary circumstances and time point of their assessment Another issue that turned out to be important during the COVID-19 pandemic is the foreseeability of unavoidable and extraordinary consequences. In case C-299/22, the question arose as to whether a traveller is entitled to termination of contract without obligation to pay a termination fee if unavoidable and extraordinary circumstances already existed or were foreseeable to a certain extent before the conclusion of the contract. In this regard, AG Medina stressed in her opinion (thereby citing the findings of the Irish Government) that, before the official announcement of COVID19 as a pandemic by the WHO on 11 March 2020, it was not possible for an average (well informed) person to foresee the pandemic’s ‘suddenness, scale and severity’.33 However, AG Medina reaches the conclusion that the traveller’s right to terminate the contract without a termination fee depends on the fact of whether the circumstances on which the traveller relies had already arisen or were at least already reasonably foreseeable at the time of conclusion of contract (in this case, there is no right of termination without a termination fee) unless there is a significant change in those circumstances as well as the traveller’s awareness of such circumstances and consequences thereof.34 Thus, according to AG Medina, when applying the criterion of reasonable foreseeability with regard to the COVID-19 pandemic, the difficulty to predict the course and consequences of the pandemic at the time of conclusion of contract should be taken into consideration35. The CJEU emphasized in its judgment that such circumstances must necessarily arise after the conclusion of contract36 and must not be known to the traveller on the date of the conclusion of contract.37 As far as the significant evolvement of unavoidable and extraordinary circumstances is concerned (as was the case in the COVID-19 pandemic), the CJEU followed the AG’s position explaining that in such cases those changes could give rise to a new situation that could meet the requirements of ‘unavoidable and extraordinary circumstances’.38 A similar problem was tackled in case C-584/22 with reference to the Court to give some guidance as to the time point of the assessment of unavoidable and extraordinary consequences: Should account be taken only 33 Para. 64 of the Opinion. 34 Para. 65 of the Opinion. 35 Ibid. 36 Para.76 of the Judgment. 37 Para. 79 of the Judgment. 38 Paras. 30 and 31 of the Judgment.
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