By judgment issued on 12.1.2023 (in Case C-396/2021), the Court of Justice of the European Union decided that Article 14 of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements should be interpreted as follows:“A traveller is entitled to a reduction in the price of his or her package holiday where a lack of conformity of the travel services included in the package is due to restrictions that have been imposed at the travel destination to fight the spread of an infectious disease and such restrictions have also been imposed in the traveller’s place of residence and in other countries due to the worldwide spread of that disease”.

The CJEU’s preliminary ruling originated from a claim for a reduction of the price brought before a German court by two travellers who had purchased a package tour for a two-week trip to Gran Canaria, starting on 13 March 2020 and ending on 27 March 2020, which, due to the restrictive measures issued by the Spanish Government in order to fight the spread of the COVID-19 pandemic, had firstly been modified and then interrupted by the tour operator on 19 March 2020, forcing the travellers to return to Germany early.

The organiser of the travel package had indeed refused to grant the claimants a price reduction taking the view that it could not be held liable for what constituted a “general life risk”.

The Court of first instance had then dismissed the claim, and the applicant had brought an appeal against that decision before the referring court.

The Court indeed decided to stay the proceedings and to refer to the CJEU, asking whether restrictions imposed due to an infectious disease that is prevalent at the travel destination constituted a lack of conformity within the meaning of Article 14(1) of Directive (EU) 2015/2302 even if,  because of the worldwide spread of the infectious disease, such restrictions were imposed both in the traveller’s place of residence and in other Countries (as in the present case).

Article 14 of the said Directive regulates the price reduction and compensation for damages the traveller is entitled to in the event of a “lack of conformity” of the travel package.

By defect of conformity, the legislator means a non-fulfilment or inexact fulfilment of the obligations assumed by the organiser of the package, determining a difference between the services included in the package and those actually provided to the traveller.

Article 14.1 stipulates that “Member States shall ensure that the traveller is entitled to an appropriate price reduction for any period during which there was lack of conformity, unless the organiser proves that the lack of conformity is attributable to the traveller.”

According to the CJEU, it is apparent from a literal interpretation of the above-mentioned rule that the investigation into the cause of the lack of conformity is completely irrelevant in order to recognise the reduction, as it is not necessary to ascertain whether the non-performance, or defective performance, is attributable to the travel organiser. The only obstacle to the recognition of the price reduction is the proof, to be provided by the travel organiser, that the lack of conformity is attributable to the traveller.

The Court states that such a strict interpretation of the provision is also consistent with the harmonized system of contractual liability for package travel organisers in which Article 14 is included, characterised by a strict liability of the travel organiser, and with the objective pursued by Directive 2015/2302 of ensuring a high level of protection for the traveller.

According to the Court, it follows that the right to a price reduction, unlike what is provided for by the general provisions for the compensation of damages suffered by the traveller as a result of the breach, must be granted irrespective of whether that lack of conformity is due to ‘unavoidable and extraordinary circumstances that are beyond the control of the organizer concerned’.

Lastly, the Court clarified the parameters to be followed in determining the reduction, stating that: (i) the reduction must relate only to the services included in the travel package, (ii) it must be appropriate to the period during which the lack of conformity occurred, and (iii) the traveller, in order to be able to obtain that reduction, must inform the organiser of the lack of conformity found without undue delay and taking into account the circumstances of the case.

Cecilia Cavanna

cecilia.cavanna@mordiglia.it