INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW of the situation prevailing on the date of the traveller’s termination of contract or also after that date but prior to the start of the package. In this case, the applicant booked a package tour to Japan in January 2020 that was to take place 3-12 April 2020 with a travel organiser based in Germany. Due to the emergency measures adopted by the Japanese authorities, the applicant terminated the contract on 1 March 2020. When Japan adopted an entry ban on 26 March 2020, the applicant requested a refund of the termination fees (however, his claim was refused by the travel organiser). In its decision, the CJEU took a rather strict approach from the traveller’s point of view. It held that, in order to assess whether unavoidable and extraordinary circumstances significantly affect the performance of the package, account should be taken (only) on the date of termination of the package travel contract (ex ante assessment)39 while the effect of such consequences after the termination of contract cannot be taken into consideration40. However, in obiter dictum, the Court held that a global health crisis, such as the COVID-19 pandemic must, as such, be capable of falling within the scope of unavoidable and extraordinary circumstances.41 Although the position of the CJEU on the time point relevant for the assessment of unavoidable and extraordinary circumstances might seem harsh to the traveller at first glance (at least from the COVID-19 perspective), this is not the case. Namely, it can occur that the circumstances at the time of termination seem worse, but it subsequently turns out that the alarm was in vain – in this case, the traveller would still be entitled to full reimbursement without obligation to pay a termination fee. Despite the highly relevant issue concerning the moment which is decisive for assessing the criterion of exceptional and unavoidable circumstances, the Commission did not include it in the Proposal. Although the CJEU’s ruling does not seem to be in favour of travellers, it is a pity that the Proposal remains silent on this important issue. Its codification would definitely be a valuable step for legal certainty. COVID-19 pandemic: General life risk borne by the traveller? With regard to the consequences of unavoidable and extraordinary circumstances or, more precisely, a price reduction due to a lack of conformity of the services provided, the ruling of the Court in case C- 39 Para. 28 of the Judgment. See also: Tonner, 2003, p. 2784; Wukoschitz in: Torres et al., 2020, p. 197. 40 Para. 33 of the Judgment. 41 Para. 48 of the Judgment. Similar also: Weller, Lieberknecht, 2020, p. 1021.
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