When a package trip is canceled without cancellation fees for the traveler and when not: “Personal Force Majeure”

A traveler may decide, prior to the start of the trip, to cancel a package trip without having to pay cancellation fees to the organizer or, where appropriate, to the retailer when any of the following cases occur: when he is informed of an increase in the price of the total package trip (due to certain circumstances) by more than 8%, when the organizer significantly and unilaterally modifies the clauses of the contract, causing substantial modifications or, when any of the special requirements cannot be met requested by the consumer in relation to certain special needs of the traveler accepted by the organizer.

In addition to the above cases, the traveler may also terminate the package travel contract before the start of the contract, without having to pay any penalty and being entitled to a refund of any payment made “when there are unavoidable and extraordinary circumstances at the place of destination or in the immediate vicinity that significantly affect the execution of the package trip or the transportation of passengers to the place of destination” (Article 160.2 of Royal Legislative Decree 1/2007, of November 16, approving the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws).

Prior to the transposition of DIRECTIVE (EU) 2015/2302 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of November 25, 2015 on package travel and related travel services, amending Regulation (EC) No. 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC to the national legal system through Royal Decree-Law 23/2018, of 21 December, transposing directives on trademarks, rail transport and package travel and related travel services, the article indicated that “at any time the consumer and user may rescind the services requested or contracted, having the right to a refund of the amounts they have paid, but must compensate the organizer or retailer in the amounts indicated below, unless such resolution takes place due to force majeure [...]”.

When conflicts occurred regarding the application of cancellation fees or not that were judicialized, the judges, under the umbrella of the previous legislation, understood that, for example, a consumer's personal medical cause that prevented him from enjoying the package trip as it had been contracted, was a cause for resolution by “cause of force majeure” and, therefore, the cancellation fees previously informed to the traveler were not applicable. This was detrimental to organizers and retailers, since it was the businessman who had to “assume” the consequences of canceling a traveler for a cause other than the provision of the trip.

With the drafting change that occurred with DIRECTIVE (EU) 2015/2302 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL, later transposed by the entry into force of Royal Decree-Law 23/2018, amending Royal Legislative Decree 1/2007, the European legislator eliminated the “personal force majeure”.

Thus, only circumstances of force majeure are considered to grant the traveler the right to cancel, obtaining a full refund of any payment made, those”unavoidable and extraordinary circumstances at the duty station” and that, besides, that's not enough,”significantly affect the execution of the trip or the transportation of passengers to the place of destination”. In other words, it is not enough for inevitable and extraordinary circumstances to occur at the destination but, in addition, they must significantly affect the execution of the trip or the transport of passengers to the place of destination and, therefore, a possible force of personal cause majeure is not a reason for voluntary cancellation that entitles the traveler to a refund of any payment made.

In this regard, Spanish judges are pronouncing themselves, for example, in Judgment No. 14/2021, of January 27, of the 1st Section of the Provincial Court of Guadalajara “[...] for the legislator, the reason for the withdrawal is irrelevant. It simply recognizes that power (“to rescind the requested services”), only that it must leave the retailer harmless, who must not bear the management costs or the cancellation fees, but if any” or Judgment No. 86/2022, of March 4, of the Court of First Instance No. 11 of Bilbao “the cause of the resolution cannot be considered as constituting force majeure [...] the plaintiff justifies that the reason for the resolution was the situation of risky pregnancy after the reservation, a situation similar to an illness, but not constituting force majeure for the purposes of article 160 of the TR, which expressly refers to “inevitable and extraordinary circumstances at the place of destination or in the immediate vicinity”.

Precisely, to cover situations of a possible “personal force of cause majeure”, the legislator established, within the set of information obligations of the organizer or, where appropriate, the retailer, to the consumer before the traveler is bound by any package travel contract or corresponding offer, the obligation to provide the traveler”information on the subscription of optional insurance to cover the expenses incurred in the event that the traveler decides to end the contract or the expenses of assistance, including those of repatriation, in the event of an accident, illness or death.” (Article 153.1.h) of Royal Legislative Decree 1/2007).

To cover situations of a possible “personal force of cause majeure” travelers have the option of taking out an insurance policy that will cover the expenses that may have been incurred. All this provided that the cause of cancellation of the trip alleged by the person canceling is contained in the wording of the condition of the policy, since it is clear that insurance will never cover all the causes that may occur in the future of life.

Inés Aguinaliu (T&L Attorney)