On 12 January 2023, the European Court of Justice has decided in a dispute between two travellers and a German travel organiser, concerning the price reduction of a package tour, claimed as a result of restrictions imposed at the place of destination (Gran Canaria) in order to combat the spread of the COVID-19 pandemic.
Whereas, as acknowledged by the Advocate General, public measures adopted in the context of the pandemic could fall within the concept of force majeure, based on Directive 2015/2302, force majeure was not considered relevant to excuse not conformity in relation to price reduction. Indeed, under article 14(1) of Directive 2015/2302, the traveller is entitled to an appropriate reduction in price for the period during which there was a lack of conformity, unless the organiser proves that such lack of conformity is attributable to the traveller; except for the case in which non conformity is attributable to the traveller, no other element, including circumstances beyond the organiser's control such as 'unavoidable and extraordinary circumstances', could affect the existence of the traveller’s right to price reduction.
The Court acknowledged that such exceptions apply to the right to damages: a remedy that was not sought in this dispute. The Court also specified that price reduction must be adequate by reference to the services included in the package and must reflect the value of the services whose lack of conformity has been established.
In this regard the Court did not totally follow the opinion of the Advocate General, who had specified that, when defining the adequate price reduction, the national court could take into account the origin of the lack of conformity, whether there was fault on the part of the organiser and the possibility for the organiser to recover further up the business chain or from the State money paid to the traveller. She had also concluded that, in the circumstances of the present case, factors relevant to that assessment include the fact that the lack of conformity was exclusively due to the measures adopted in view of the public health emergency and intending to protect the public, including the travellers. On the other hand, the Advocate General had emphasized that, in light of the liquidity problems of travel organisers, which were heavily affected by the COVID 19 pandemic, the time limit for payment of price reduction should be determined taking such circumstances duly into account. This issue, however, has not been addressed by the Court since the preliminary reference did not specifically deal with payment terms.
Reference: Court of Justice of the European Union (Second Chamber), 12 January 2023, case C-396/21, KT, NS v. FTI Touristik GmbH.