GF, a medical consultant in private practice, and his wife concluded a contract with Schauinsland-Reisen for the organisation, by the latter, of a package trip to the Maldives which was scheduled to take place during the period from 26 December 2020 to 2 January 2021. From December 2020, the Maldives, due to the health risks caused by the COVID-19 pandemic, was subject to a travel warning issued to travellers from the Außenministerium (Ministry of Foreign Affairs, Austria) at the highest level. On 3 December 2020, the tour operator terminated the package travel contract in reason of that warning, communicated termination to GF and refunded the deposit paid by him. However, the traveller (GF) brought an action before the Landesgericht für Zivilrechtssachen Graz (Regional Civil Court, Graz, Austria) seeking damages for himself and his wife. He complained about the loss (for the loss of enjoyment of the holiday and loss of earnings caused by the closure of his practice due to the planned trip, which he was no longer able to cancel at short notice after that termination. For that purpose, GF claimed that the Ministry of Foreign Affairs’ travel warning was not an unavoidable and extraordinary circumstance that would have prevented Schauinsland-Reisen from fulfilling the package travel contract (especially since the seven-day incidence rate of the virus in the Maldives, at the time of termination of that travel contract, was lower than that in Austria). On his part, Schauinsland-Reisen responded that it could not reasonably be expected to perform the package travel contract in the face of the publication of such a warning, having regard to the unforeseen consequences to which it may be exposed in the light of its liability as a travel organiser. Both the Landgericht für Zivilrechtssachen Graz and the Oberlandesgericht Graz dismissed GF’s claim for compensation. Whereas the Oberster Gerichtshof (Supreme Court, Austria), before which the GF brought an appeal on a point of law, decided to stay the proceedings and to refer some questions to the Court for a preliminary ruling. In essence, the referring court asked, whether Article 12(3)(b) of Directive 2015/2302 must be interpreted as meaning that, in order to establish that it is prevented from performing a package travel contract due to ‘unavoidable and extraordinary circumstances’, within the meaning of that provision, it is sufficient for the organiser concerned to rely on the publication, by the competent authorities, of an official recommendation advising travellers against travelling to the area concerned, even though the traveller declared that he or she still wished to proceed with the trip and that it would not have been objectively impossible for that organiser to perform that travel contract. 26 ANGELO VENCHIARUTTI
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