Summer is the time for travelling. The fast pace of life is stressful and requires the extra cost of making your own travel arrangements. To simplify the whole process, we often opt for the services of a travel agency, which makes it easier to organise and saves time.
Once we’ve planned a trip with a tour operator, we sign a travel contract in which they agree to provide a leisure trip. And then life happens—you can no longer go.
Viktorija Dubovskienė, a lawyer at AVOCAD, points out that under the Civil Code, a traveller has the right to terminate an organised tourist travel contract without paying a termination fee:
- if the tour operator changes the terms of the package travel contract before the start of the package tour;
- if, because of the defects pointed out by the traveller, the package travel contract cannot be continued and the tour operator fails to remedy the defects within a reasonable period of time set by the traveller;
- if force majeure events occur at or very close to the place of destination of the package tour, which may make it impossible to carry out the package tour or to take the travellers to the place of destination of the package tour.
Let's look more closely at the third case, where the contract with the tour operator is terminated due to force majeure circumstances at or very close to the destination, which make it impossible to carry out the trip and to take the tourists to their destination.
According to the lawyer, the case law of the Supreme Court of Lithuania states that the following features qualify the circumstances of force majeure (unavoidable and extraordinary):
- First, these circumstances must exist on the date of termination. These circumstances did not exist at the time of the conclusion of the package travel contract, were not known to the traveller at the time of the conclusion of the contract and could not have been foreseen by the traveller.
- Second, the force majeure circumstances must have a substantial effect on the execution of the package tour or on the transport of the tourists to the destination of the package tour. Substantial effect on the performance of the organised tourist trip or on the taking of tourists to the place of the organised tourist trip. This includes not only circumstances which render the performance of the contract impossible in general, but also circumstances which, without precluding such performance, make it impossible to perform the contract without endangering the health and safety of the travellers concerned, taking into account, where appropriate, personal factors relating to the individual situation of those travellers. This assessment shall be made on the basis of a prediction that, at the date of termination, the performance of the package travel contract in question is likely to be significantly affected from the consumer's point of view.
The assessment in question is necessarily prospective in nature, as the impact will only be fully realised through the implementation of the package travel contract. Moreover, the assessment must be objective and not be based solely on the consumer's fears, anxieties or feelings of apprehension.
- Thirdly, force majeure circumstances can only justify the decision of the traveller concerned to cancel the contract without financial loss if they occur at the place of destination or in the immediate vicinity of the destination.
- Fourth, a tourist who relies on circumstances of force majeure could not control those circumstances and avoid their consequences, even if he had taken all reasonable measures within his power. This qualifying feature must be assessed in light of the nature of the circumstances relied upon to terminate the contract (e.g., security-related unrest—military, political, terrorist acts), a problem posing a significant risk to human health (outbreak of a serious disease) or natural disasters (floods, earthquakes or meteorological conditions).
The occurrence of force majeure does not require an official recommendation by the competent authorities to refrain travellers from entering the area concerned or an official decision classifying the area as a risk zone. However, if the competent authorities have issued such a recommendation, this shall constitute proof of force majeure.
If the establishment of the existence of the circumstances in question were to be linked only to the publication of official recommendations and decisions, i.e. if it were to be assumed that the right of the tourist to terminate the package travel contract is only triggered by the publication of such official recommendations (e.g. not to go to certain countries) and decisions (e.g, The right of a tourist to cancel a tourist travel contract when the circumstances of force majeure may make it impossible to carry out the trip (making it impossible to travel safely as agreed in the contract) would be unduly narrow and generally meaningless, which would be contrary to the principle of efficiency as well as to the principle of consumer protection.
Therefore, despite the fact that you are no longer able to go on the trip you want to go on due to what you consider to be force majeure circumstances which have a material impact on the performance of the package tour, you will have to weigh the above-mentioned indications in order for the termination of the contract with the travel agency to be considered justified and for you to have the right to claim a refund of the money paid for the package tour.