ECJ Ruling Empowers Travel Organizers to Inform Travelers About Their Right to Terminate Contracts.
The Court of Justice of the European Union has given the right to two travellers in the case C-83/22 Tuk Tuk Travel to terminate their contract with this travel organiser as a result of the COVID-19 situation.
In its judgment of September 14, the Court of Justice stressed that first of all, the directive obliges a travel organiser to inform the traveller of his/her rights to terminate the contract.
The Court of Justice states that, given the significance of the right to terminate the contract conferred by the directive (and the further right to the full refund of payments made), its effective protection requires that the national court may, of its own motion, claim that that directive has been infringed, in particular where the traveller does not assert his or her right since he or she is unaware of its existence.
In addition, the Court emphasised the fact that the traveller was unaware of his rights to put an end to the contract after the travel organiser, Tuk Tuk, didn’t notify him of having such a right.
Thus, the Court stressed that the Spanish Court is required to examine its own motion for the right to terminate the contract. The EU Court notes that firstly, it will have to notify the passenger of the right and, secondly, offer him the possibility of asserting that right in the judicial proceedings pending.
By contrast, an ex officio assessment does not require the national Court to terminate of its own motion the package travel contract concerned without fees while conferring on the same applicant the right to a full refund of payments made. It is up to the traveller to decide whether he or she intends to assert that right or not before the Court.
In October 2019, a traveller purchased from the Tuk Tuk travel organiser a package of holiday for two persons to Vietnam and Cambodia, departing from Spain’s capital, Madrid, on March 8, 2020, and returning on March 24, 2020. The traveller paid nearly half of the total price of the trip.
The contract gave information about the possibility of putting an end to the contract before the departure upon payment of a fee, but it didn’t provide information regarding the possibility of terminating the contract at no cost under extraordinary circumstances occurring at the place of destination. Then, on February 12, 2020, the traveller informed Tuk Tuk regarding his decision to put an end to the contract as a result of the COVID-19 situation, requesting the traveller organiser to refund all the amount to which he was entitled.
The traveller brought an action after being informed by Tuk Tuk that after deducting cancellation fees, just a small part of the amount paid would be reimbursed.
Furthermore, the traveller claimed to have terminated the contract almost one month before the scheduled departure date, ensuring that a case of force majure was the spread of Coronavirus in Asia.
The passenger, who is not represented by a lawyer, claims only a refund in part of the amount paid after he considers that a quarter of that amount corresponds to the management fees incurred by the travel organiser.
The action was brought before the Spanish Court, while the latter requested the interpretation of the Court of Justice of a package of the travel directive. The Spanish Court asked whether it may grant the traveller the refund of all the payments made, where the latter terminated the contract as a result of extraordinary circumstances.
