Tourism Law in Europe

points: if a tour operator/package organiser offers the choice of free cancellation or proceeding with the holiday, he or she would need to be sure that consumers wanting to travel gave an informed consent to the risk. Given that many travel insurance policies are invalidated by travelling against FCDO advice, organisers should be sure that consumers who travel are aware of that problem, and are preferably steered towards policies on the market which cover the risk. Moreover, the organiser must, of course, ensure its own public liability insurance is not affected. 4. Conclusion Since the PTD does not mention at all Government advice nor its status, the relevant wording is the one found at Article 12(2), set out in full, above. As can be seen, the right of the consumer to free cancellation turns on whether there exists, at the destination, unavoidable and extraordinary circumstances which significantly affect the performance of the package or travel to – not from! – the destination. What does the “performance of the package” mean? Some argue that performance is not affected if the flight operates and the hotel is open. If so, that would mean that cancellation charges could be enforced on consumers unwilling to travel against Government advice, not needing to be offered a full refund. Whilst this line of thinking is arguable, it is in our view a losing argument. This is particularly the case given that the objective of the Directive is to achieve as high a level as possible of consumer protection (see Art. 1) and the generally pro-consumer stance of our courts. It is hard to imagine courts deciding that the PTD allows an organiser to retain all or part of consumer’s money when the consumer chooses not to travel because of Government advice. The fundamental reason is that, as we have seen, the courts do not merely regard a holiday as being a flight and a hotel (or, among others, transfer), they regard it as being about the provision of peace of mind, freedom from distress or enjoyment, imposing on organisers a contractual duty of care extending well beyond the bare basics of the hotel room. Seen in that light, the performance of the package is definitely and significantly affected for travellers who feel anxious about the disease and about contravening Government advice. If they travel, they will not know peace of mind, freedom from distress or enjoyment until they are safely back home. Furthermore, they should be