Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 25 May 2023 – J and A v Reisebüro GmbH and R GmbH
(Case C-328/23, Reisebüro and R)
Language of the case: German
Referring court
Oberster Gerichtshof
Parties to the main proceedings
Applicants: J, A
Defendants: Reisebüro GmbH, R GmbH
Questions referred
1. Must Article 12(2) of Directive (EU) 2015/2302 1 be interpreted as meaning that unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package or the carriage of persons to the destination, which entitle the consumer to terminate the package travel contract without paying a termination fee and on which the traveller relies, are to be understood as being ones which
– may permissibly already be present at the time when the package travel contract is concluded; or
– cannot permissibly yet be present at the time when the package travel contract is concluded, but occur for the first time only at some point between then and
the declaration of termination, or
when the package starts?
2. Must Article 12(2) of the aforementioned Directive (EU) 2015/2302 be interpreted as meaning that the unavoidable and extraordinary circumstances referred to therein are to be understood as being ones which
– are not known to the parties at the time when the travel contract is concluded; or
– may permissibly be known to the parties at the time when the travel contract is concluded; or
– are not foreseeable, as being generally or imminently likely to occur, by the parties at the time when the travel contract is concluded; or
– may permissibly be foreseeable, as being generally or imminently likely to occur, by the parties at the time when the travel contract is concluded – and, if so, on the basis of which specific criteria arising from the Directive; or
– are broadly known to the parties at the time when the package travel contract is concluded but the specific configuration of which cannot yet be predicted (or can be so with only some degree of probability at most) (which is to say, for example, whether, as a result of a pandemic [in this instance, COVID] which has been in existence for [in this, instance, more than ten] months, additional testing and/or lockdown measures will be prescribed at the holiday destination); or
– are to be assessed, entirely independently of the level of knowledge of the parties, exclusively on the basis of objective criteria – and, if so, on the basis of which specific criteria arising from the Directive?
3. Must Article 5 of the aforementioned Directive (EU) 2015/2302 be interpreted as meaning that the pre-contractual information to be provided to the traveller – in particular the information on ‘health formalities’ provided for in Article 5(1)(f) – is to be understood as also including that concerning the testing and lockdown measures to be complied with at the holiday destination on account of the pandemic.
If Question 3 is answered in the affirmative:
4. Must Article 5 of the aforementioned Directive (EU) 2015/2302 be interpreted as meaning that, in the event that the parties agree to amend (adjust; ‘reconfigure’) the terms of the package travel contract after it has been concluded – in relation, for example (as here), to individual travel services within the meaning of Article 5(1)(a), such as the transport arrangements, the itinerary or the date of travel –, the pre-contractual information to be provided to the traveller must be provided again or updated in full (even if it is not affected by the ‘reconfiguration’) or in part?
____________
1 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, 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 (OJ 2015 L 326, p. 1).