8 April 2020

Trip cancelled?

The coronavirus outbreak has caused many countries to close their borders. Moreover, countries such as Italy, Spain and France are now in complete lockdown, with no one allowed in the streets. This situation has resulted in many people having cancel their holiday or trip abroad. In this blog, we outline the situation with regard to package travel agreements and to what extent you can claim compensation for the costs you have incurred.

What is a package deal?

A package holiday is a combination of at least two different types of travel services for the same trip or holiday, bundled together by one (travel) organiser. This combination may, for example, consist of transport, accommodation, car hire or other tourist services. In the case of a package travel contract, the travel organiser is responsible for all the travel services laid down in the contract, even if these services are provided by other service providers (e.g. all contracts concluded by the travel organiser in connection with airline tickets, hotels, trips).

A package travel contract falls under the regime of Title 7A of Book 7 of the Dutch Civil Code, which means that the consumer enjoys a greater degree of protection than under general contract law. Furthermore, travellers travelling for both private and professional reasons are protected by these legal provisions.

What to expect from a tour operator?

The tour operator must ensure that the trip takes place in accordance with the expectations that you, as a traveller, could reasonably hold on the basis of the agreement. If one or more travel services, which are part of the package holiday, are not (or cannot be) carried out properly, there is non-conformity.

In the event of non-conformity, the tour operator may offer you suitable alternative arrangements, which are of equivalent or higher quality than the original arrangement. Should the tour operator offer you an alternative package holiday agreement that is of a lower quality, you are entitled to an appropriate price reduction. If the tour operator makes you an alternative offer which is not comparable to the original offer, or the price reduction granted is insufficient, you may dissolve the contract without payment of a termination fee and subsequently claim reimbursement of the travel sum and compensation.

Force majeure & corona?

The situation would be different if there was an instance of force majeure. Although there is currently a lot of discussion as to whether the corona crisis qualifies as a force majeure event, we believe that, in the light of the most recent measures taken throughout the world, a claim of force majeure has a chance of succeeding. It is important to note that both the customer and the tour operator can invoke force majeure.

The law describes a force majeure situation for package holidays as unavoidable and exceptional circumstances. This is a situation that is outside of the control of the party invoking it and the consequences of which cannot be avoided despite all reasonable precautions being taken. The corona crisis appears to meet this definition. After all, the tour operator cannot carry out the trip (in accordance with the contract) due to external circumstances.

If your tour operator demonstrates force majeure, it can terminate the contract without any obligation to pay compensation. However, it is obliged to refund the travel sum paid by you.

The same applies if, as a customer, you wish to terminate the package holiday contract. You must demonstrate that there is a case of force majeure, in the sense that there have been unavoidable and exceptional circumstances that have arisen at your destination or in its immediate vicinity which have a significant impact on your booked trip. Now that meeting in groups is banned in many countries, and there are even lockdowns that restrict people from going on the streets, it seems likely that you, as a customer, could successfully invoke force majeure. You would then be able to cancel the agreement and reclaim the travel sum that has been paid.

Amending your trip

The tour operator also has the possibility, independently to a possible force majeure situation, to change the agreement. However, this must be an insignificant change. There will be no question of an insignificant change if the quality or value of the services decreases. Changes to departure or arrival times should be regarded as significant if, among other things, they cause more than considerable inconvenience or additional costs.

The tour operator must inform you of this proposed change in a clear and comprehensible manner. However, you, as the customer, have the right to reject any proposed changes.

Cancel the trip?

It is up to you, as a customer, to decide how to proceed. Presumably, in order to minimise the loss of income, the travel operator will try to ensure the trip goes ahead by making changes to the contract. If you agree with these changes, the agreement can be fulfilled. However, you are entirely free not to agree to these changes.

Should you wish to terminate the agreement yourself, you can terminate the agreement by invoking force majeure and reclaim the travel sum paid by you. Please note: if you terminate the agreement and it is found that the corona crisis does not qualify as a force majeure event, you will be obliged to pay a termination fee to the travel operator.

If you have any questions about the termination of your package holiday agreement, or if you wish to discuss your specific situation, please contact ons.