REVISION OF THE EUROPEAN PACKAGE TRAVEL DIRECTIVE emergency law which allowed organisers to offer travellers a replacement package tour instead of a refund of any payments made and those travellers were then entitled to that refund only after 31 August 2021 and no later than 14 September 2021. In both cases, the CJEU made it clear that the concept of a ‘refund’ within the meaning of the Directive solely means the return of any payments made for a package in the form of a sum of money.50 However, as further explained by the Court, this interpretation does not preclude the possibility for a traveller to voluntarily agree to accept a voucher instead of money, if such a possibility does not deprive that traveller of their right to a reimbursement in money.51 Influenced by the CJEU case law, the Commission proposed a new article on vouchers (Article 12a of the proposed Directive) which also summarises the Commission’s recommendations of May 2020. The new provision gives package travel organisers the possibility to offer travellers vouchers instead of money after the termination of a package travel contract. Importantly, the information duty is imposed on organisers so as to properly inform the traveller that they are not obliged to accept the voucher. Thus, as emphasised by the CJEU, reimbursement in the form of a voucher is only permitted on a voluntary basis. Moreover, the new article specifies the detailed characteristics of such vouchers: (i) validity of 12 months (with the possibility of extension), (ii) equal value as the amount of the refund, (iii) transferable without additional costs, (iv) covered by insolvency protection. Although vouchers are only possible on a voluntary basis, this provision was clearly introduced in favour of the organisers and tourism sector as a result of the COVID-19 pandemic experience. Insolvency protection In order to harmonise the insolvency protection schemes in the field of package travels across Europe, the Commission suggested a modified version of the current Article 17 on insolvency protection. Since consequences of insolvency are mostly governed by the laws of the Member States, the Commission decided to offer a greater level of harmonisation in this regard due to the different treatment of travellers that arose as a result during the COVID-19 pandemic. As pointed out in its Recommendation of May 2020, the problem arose where organisers or carriers became insolvent, as there was a risk that many travellers and passengers did not receive any refund at all, since their claims against organisers and carriers were not 50 Para. 26 of the Judgment in C-407/21 and para. 65 of the Judgment in C-540/21. 51 Para. 34 of the Judgment.
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