When a package trip can be cancelled without cancellation fees for the traveler and when not: "Personal Force Majeure".

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

In addition to the above assumptions, the traveler may also terminate the package travel contract before the start of the same, without having to pay any penalty and being entitled to reimbursement of any payment made "when unavoidable and extraordinary circumstances occur at the place of destination or in the vicinity that significantly affect the execution of the package or the transport of passengers to the destination" (Article 160.2. of the Royal Legislative Decree 1/2007, of November 16, which approves the revised 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 25 November 2015 on package travel and linked 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 into national law through Royal Decree-Law 23/2018 of 21 December, transposing directives on trademarks, rail transport and package travel and linked travel services, the article indicated that "at any time the consumer and user may cancel the services requested or contracted, being entitled to a refund of the amounts paid, but must compensate the organizer or retailer in the amounts indicated below, unless such termination takes place due to force majeure [....]".

When disputes arose regarding the application of cancellation fees or not, the judges, under the umbrella of the previous legislation, understood that, for example, a personal medical cause of a consumer that prevented him from enjoying the package trip as it had been contracted, was a cause for termination due to "force majeure" and, therefore, the application of the cancellation fees previously informed to the traveler was not applicable. This was detrimental to organizers and retailers, since it was the entrepreneur who had to "assume" the consequences of a traveler's cancellation due to a cause unrelated to the provision of the trip.

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

Thus, only "unavoidable and extraordinary circumstances at the place of destination" are considered force majeure circumstances that give the traveler the right to cancel and obtain a full refund of any payment made, and which, in addition, not being sufficient, "significantly affect the execution of the trip or the carriage of passengers to the place of destination". In other words, it is not sufficient that unavoidable and extraordinary circumstances occur at the destination, but they must also significantly affect the execution of the trip or the transport of passengers to the destination and, therefore, a possible force majeure is not a reason for voluntary cancellation entitling the traveler to reimbursement of any payment made.

Spanish judges are pronouncing in this sense, for example, in Judgment No. 14/2021, of 27 January, of the 1st Section of the Provincial Court of Guadalajara "[...] for the legislator, the reason for withdrawal is irrelevant. It simply recognizes that power ("to leave without effect the services requested"), only that it must leave the retailer unharmed, who must not bear the management costs or the cancellation costs, if any" or Judgment No. 86/2022, of March 4, of the Court of First Instance No. 11 of Bilbao "the cause of the termination cannot be considered as constituting force majeure [...] the plaintiff justifies that the cause of the termination cannot be considered as constituting force majeure [...] the plaintiff justifies that the termination of the contract does not constitute force majeure [...].the plaintiff justifies that the reason for the termination was the situation of pregnancy at risk 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 "unavoidable and extraordinary circumstances at the duty station or in the immediate vicinity".

Precisely to cover situations of a possible "personal force 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 with "information on the subscription of an optional insurance covering the expenses arising in the event that the traveler decides to terminate the contract or the costs of assistance, including repatriation, in case of accident, illness or death". (Article 153.1.h) of Royal Legislative Decree 1/2007).

In order to cover situations of an eventual "personal force majeure", travelers have the option of taking out an insurance policy that will cover the expenses incurred. All this as long as the cause of cancellation of the trip alleged by who cancels is contained in the wording of the conditions of the policy, since it is evident that an insurance policy will never cover all the causes that can occur in the course of life.

Inés Aguinaliu (Lawyer T&L)