The pandemic has highlighted uncertainties about holiday organisers’ liabilities under the Package Travel Regulations (PTRs) for cancellations due to “extraordinary circumstances”.
Stephen Mason, senior counsel at Travlaw, noted an ambiguity in Article 12 of the PTRs which gives a traveller the right to cancel a package and obtain a full refund “in the event of unavoidable and extraordinary circumstances at the place of destination or its immediate vicinity”.
The wording, which comes from the EU Package Travel Directive (PTD), states these cancellation and refund rights apply where these extraordinary circumstances “significantly affect the performance of the package or the carriage of passengers to the destination”.
Mason told a conference of the International Travel Law Network: “The question is whether the cancellation of carriage [a flight] to a destination only applies if the flight was booked as part of a package. [What if] the consumer booked their own flight and the package only began after their arrival in the destination?”
Michael Wukoschitz of Vienna-based law firm KWC noted: “[The PTD] makes a distinction between circumstances in destination affecting the performance of a package and circumstances affecting the carriage. It doesn’t mean the flight has to be part of the package.”
He suggested “it’s unfair to the package organiser” but added: “The wording refers to all passengers, so it doesn’t apply to a certain flight, only if there is no carriage [flights] at all. The passenger shall be entitled to a full refund of the package but not compensation, so there is no right to a refund of the flight.”
Klaus Siebert, partner at law firm Engels-Siebert in Dusseldorf, said: “I support that interpretation. [But] we had up to 700 cases [in Germany] where passengers booked a package, made their own flight plans and, due to a cancellation, came back to the organiser seeking a refund also for the flight.”
Siebert noted a cruise organiser would argue: “We were able to carry you, you were a no-show, we won’t refund you.” But he said: “A federal court case after the Icelandic ash cloud [in 2010] said if a cruise starts in Barcelona and passengers are unable to fly due to closed airspace they are allowed to claim a refund for the flight and the organiser needs to reimburse the cost.”