VII. LIMITS OF EX OFFICIO JUDICIS However, the national judge’s ex officio intervention does not extend to rescinding the travel contract, even if the traveller is notified of this right, and would even be contrary to the traveller’s autonomy in exercising their right of cancellation. The NPTD does not go so far as to oblige travellers to exercise the rights they have under the protection system it established. In response, the Court first points out that Article 5(1) of Directive (EU) 2015/2302 requires a tour operator to inform the traveller, in particular, of their right to cancel and obtain a full refund. Second, it observes that, given the importance of the cancellation right conferred by the Directive (as well as the consequent right to a full refund of payments made), its effective protection requires that the national court be able to raise its violation ex officio, especially when the traveller does not exercise their right due to ignorance of its existence. To the extent that these conditions are met, the Spanish court is obliged to examine the right of cancellation on its own initiative. The national court must, in particular, first inform the traveller of this right and, second, give them the opportunity to exercise it in the ongoing legal proceedings. However, the court’s initiative does not oblige the national court to automatically terminate the package travel contract in question, without cost, and grant the traveller a full refund of payments made. It is for the traveller to decide whether or not to exercise this right before the court, pursuant to Article 5(1) of Directive (EU) 2015/2302, as transposed into Spanish law, as otherwise their autonomy would be violated. 44 CARLOS TORRES
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