8 June 2023 (*1)

(Failure of a Member State to fulfil obligations – Package travel and linked travel arrangements – Directive (EU) 2015/2302 – Article 12(2) to (4) – Termination of a package travel contract – Unavoidable and extraordinary circumstances – COVID-19 pandemic – Refund of payments made by the traveller for the package – Refund in the form of a sum of money or in the form of a replacement package tour – Obligation to provide that traveller with a refund not later than 14 days after the relevant contract is terminated – Temporary derogation from that obligation)

In Case C‑540/21,

ACTION under Article 258 TFEU for failure to fulfil obligations, brought on 27 August 2021,

European Commission, represented by R. Lindenthal, I. Rubene and A. Tokár, acting as Agents,

applicant,

supported by:

Kingdom of Denmark, represented initially by V. Pasternak Jørgensen and M. Søndahl Wolff, and subsequently by M. Søndahl Wolff, acting as Agents,

intervener,

Slovak Republic, represented by B. Ricziová, acting as Agent,

defendant,

THE COURT (Second Chamber),

composed of A. Prechal (Rapporteur), President of the Chamber, M.L. Arastey Sahún, F. Biltgen, N. Wahl and J. Passer, Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

By its action, the European Commission asks the Court to declare that, by introducing – by the adoption of zákon č. 136/2020 Z. z. (Law No 136/2020), of 20 May 2020 (‘Law No 136/2020’) – Paragraph 33a into zákon č. 170/2018 Z. z. o zájazdoch, spojených službách cestovného ruchu, niektorých podmienkach podnikania v cestovnom ruchu a o zmene a doplnení niektorých zákonov (Law No 170/2018 on package travel, linked tourist services and certain conditions applicable to tourist activity, amending and supplementing certain laws, of 15 May 2018 (‘Law No 170/2018’), the Slovak Republic has failed to fulfil its obligation under Article 12(2), (3)(b) and (4) of 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), read in conjunction with Article 4 of Directive 2015/2302.

Legal context

European Union law

Directive 2015/2302

Recitals 4, 5, 31, 40 and 46 of Directive 2015/2302 read as follows:

‘(4)

[Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (JO 1990, L 158, p. 59)] gives broad discretion to the Member States as regards transposition. Therefore, significant divergences between the laws of the Member States remain. Legal fragmentation leads to higher costs for businesses and obstacles for those wishing to operate cross-border, thus limiting consumers' choice.

(5)

… The harmonisation of the rights and obligations arising from contracts relating to package travel and to linked travel arrangements is necessary for the creation of a real consumer internal market in that area, striking the right balance between a high level of consumer protection and the competitiveness of businesses.

…

(31)

Travellers should also be able to terminate the package travel contract at any time before the start of the package in return for payment of an appropriate and justifiable termination fee, taking into account expected cost savings and income from alternative deployment of the travel services. They should also have the right to terminate the package travel contract without paying any termination fee where unavoidable and extraordinary circumstances will significantly affect the performance of the package. This may cover for example warfare, other serious security problems such as terrorism, significant risks to human health such as the outbreak of a serious disease at the travel destination, or natural disasters such as floods, earthquakes or weather conditions which make it impossible to travel safely to the destination as agreed in the package travel contract.

…

(40)

For the insolvency protection to be effective, it should cover the foreseeable amounts of payments affected by the organiser's insolvency and, where applicable, the foreseeable cost for repatriations. …’ That will generally mean that the security has to cover a sufficiently high percentage of the organiser’s turnover in respect of packages … However, effective insolvency protection should not have to take into account highly remote risks, for instance the simultaneous insolvency of several of the largest organisers, where to do so would disproportionately affect the cost of the protection, thus hampering its effectiveness. In such cases the guarantee for refunds may be limited.

…

(46)

It should be confirmed that travellers may not waive rights stemming from this Directive and that organisers or traders facilitating linked travel arrangements may not escape from their obligations by claiming that they are simply acting as a travel service provider, an intermediary, or in any other capacity. …’

Article 1 of Directive 2015/2302 states:

‘The purpose of this Directive is to contribute to the proper functioning of the internal market and to the achievement of a high and as uniform as possible level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States in respect of contracts between travellers and traders relating to package travel and linked travel arrangements.’

Article 3 of that directive provides:

‘For the purposes of this Directive:

…

(6)

“traveller” means any person who is seeking to conclude a contract, or is entitled to travel on the basis of a contract concluded, within the scope of this Directive;

…

(8)

“organiser” means a trader who combines and sells or offers for sale packages, either directly or through another trader or together with another trader …

…

“unavoidable and extraordinary circumstances” means a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken;

…’

Article 4 of that directive, entitled ‘Level of harmonisation’, provides:

‘Unless otherwise provided for in this Directive, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions which would ensure a different level of traveller protection.’

6.6

Article 12 of Directive 2015/2302, entitled ‘Termination of the package travel contract and the right of withdrawal before the start of the package’, states:

‘1. Member States shall ensure that the traveller may terminate the package travel contract at any time before the start of the package. Where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. …

…

(b)

the organiser is prevented from performing the contract because of unavoidable and extraordinary circumstances and notifies the traveller of the termination of the contract without undue delay before the start of the package.

…’

7.7

Article 23 of Directive 2015/2302, entitled ‘Imperative nature of the Directive’, provides:

‘…

Recommendation (EU) 2020/648

Commission Recommendation (EU) 2020/648 of 13 May 2020 on vouchers offered to passengers and travellers as an alternative to reimbursement for cancelled package travel and transport services in the context of the COVID-19 pandemic (OJ 2020 L 151, p. 10) states, in recitals 9, 13 to 15, 21 and 22:

‘(9)

Directive [2015/2302] provides that, if a package trip is cancelled due to “unavoidable and extraordinary circumstances”, travellers have the right to get a full refund of any payments made for the package, without undue delay and in any event within 14 days after termination of the contract. In this context, the organiser may offer the traveller reimbursement in the form of a voucher. However, this possibility does not deprive the travellers of their right to reimbursement in money.

…

(13)

The numerous cancellations entailed by the COVID-19 pandemic have led to an unsustainable cash-flow and revenue situation for the transport and travel sectors. The liquidity problems of organisers are exacerbated by the fact that they have to reimburse the full price of the package to the traveller while they do not themselves always receive reimbursement of prepaid services that form part of the package in due time. This can de facto result in an unfair sharing of the burden among the operators in the travel eco-system.

(14)

If organisers or carriers become insolvent, there is a risk that many travellers and passengers would not receive any refund at all, as their claims against organisers and carriers are not protected. The same problem may arise in a business-to-business context, where organisers receive a voucher as reimbursement for prepaid services from carriers, which later become insolvent.

(15)

Making vouchers more attractive, as an alternative to reimbursement in money, would increase their acceptance by passengers and travellers. This would help to ease the liquidity problems of carriers and organisers and could ultimately lead to better protection of the interests of passengers and travellers.

…

(21)

As regards possible additional liquidity needs of operators in the travel and transport sectors, on 19 March 2020 the [European] Commission adopted a Temporary Framework for State aid measures to support the economy in the current COVID-19 crisis based on Article 107(3)(b) [TFEU] to remedy a serious disturbance to the economy in the Member States. …

(22)

The Temporary Framework applies in principle to all sectors and undertakings including transport and travel undertakings and recognises transport and travel as being among the most affected sectors. It aims to remedy the liquidity shortages faced by companies by allowing for instance direct grants, tax advantages, State guarantees for loans and subsidised public loans. … In this context, Member States may decide upon support to operators in the travel and transport sectors to ensure that reimbursement claims caused by the COVID-19 outbreak are satisfied with a view to ensuring the protection of passenger and consumer rights, and equal treatment of passengers and travellers.’

According to point 1 of that recommendation:

‘This Recommendation concerns vouchers that carriers or organisers may propose to passengers or travellers, as an alternative to reimbursement in money, and subject to the passenger’s or traveller’s voluntary acceptance, in the following circumstances:

(a)

in the event of a cancellation by the carrier or organiser made as from 1 March 2020 for reasons linked to the COVID-19 pandemic, in the context of the following provisions:

…

10.10

Paragraph 33a of Law No 170/2018, which was inserted into that law by Law No 136/2020, is entitled ‘Interim provisions relating to the exceptional situation due to COVID-19’. It is worded as followed:

‘1. If, because of the exceptional situation due to COVID-19 in Slovakia or a similar situation at the place of destination or at any point on the route of the package tour, it is not possible to provide the traveller with the essential elements of the tourist services envisaged in a package travel contract, the travel organiser shall be allowed to:

(a)

propose to the traveller an alteration of the package travel contract; or

(b)

send the traveller a notification offering him an alternative package tour if he does not accept the alteration of the package travel contract proposed under point (a).

the sum of the payments received under the package travel contract;

the fact that the essential elements of the tourist services provided for in the package travel contract may, in agreement with the traveller, be amended in the context of the replacement package tour;

the right of the traveller to transfer the package travel contract in accordance with Paragraph 18.

for as long as the exceptional situation resulting from COVID-19 in Slovakia persists, entered in the register of jobseekers, as demonstrated by a written notification of his or her entry in that register;

a self-employed person or a single-member private limited liability company who has received financial support in connection with a project to promote job retention after a declaration of exceptional circumstances, a state of emergency or a state of exception and the elimination of their consequences, as demonstrated by the confirmation of the grant of such support;

a single parent who has obtained the right to a pandemic care allowance, as demonstrated by the confirmation of the grant of that allowance and a solemn declaration concerning his or her status as a single parent;

a person who is pregnant on the date of receipt of notification of the replacement package tour, as demonstrated by a medical certificate; or

a person aged 65 years or over, as demonstrated by the indication of the date of birth on an identity card or any other similar identity document.

6. If a traveller who has concluded a package travel contract refuses, in accordance with point 4, the replacement package tour, the travel organiser shall be obliged to refund to him, without penalty of cancellation, all the payments received under the package travel contract without delay and no later than 14 days from the date of receipt of the refusal of the replacement package tour. Where a traveller who has concluded a package travel contract refuses, in accordance with point 5, part of the replacement package tour in connection with one or more travellers covered by the same package travel contract, the travel organiser shall – without imposing a cancellation fee in respect of persons not taking part in the replacement package tour – refund to him or her the payments it has received under the package travel contract, without delay and no later than 14 days from the date of receipt of the partial refusal of the replacement package tour.

7. The travel organiser is required to come to an agreement with the traveller that it will provide him or her with a replacement package tour by 31 August 2021.

10. If, during the period from 12 March 2020 to the entry into force of this Law, a traveller or a travel organiser has terminated a package travel contract in accordance with Paragraph 21(2) or Paragraph 21(3)(b) and the travel organiser has not, on the basis of that termination, refunded to the traveller all payments received under the package travel contract, the procedure provided for in point 1 shall apply.

11. If, during the period from 12 March 2020 to the entry into force of this Law, the traveller has terminated the package travel contract in accordance with Paragraph 21(1) and the termination fee has not been settled, the procedure provided for in point 1 shall apply.

13. For as long as the exceptional situation due to COVID-19 persists in Slovakia or a similar situation exists at the place of destination or at any point on the route of the package tour, the travel organiser may not require the traveller to pay a deposit on the price of the package tour; this provision shall not apply if the traveller accepts the alteration of the package travel contract in accordance with point 1(a).

—

Pre-litigation procedure and the proceedings before the Court

By letter of 14 May 2020 addressed to the Slovak Republic, the Commission stated that it had received information indicating that, in the context of the global COVID-19 pandemic, that Member State was preparing national measures liable to run counter to Directive 2015/2302. The Commission invited the Slovak authorities to provide additional information on the state of preparation of those measures.

By letter of 28 May 2020, the Slovak Republic informed the Commission that the National Council of the Slovak Republic had adopted, on 20 May 2020, Law No 136/2020 amending Law No 170/2018. That Member State explained that, under Law No 136/2020, travel agencies could propose to their customers an alteration of the current package travel contract or, if customers refused that alteration, a replacement package tour, which presupposed that the travel agent and the customer concerned would agree to a new package before the end of August 2021.

On 3 July 2020, the Commission sent the Slovak Republic a letter of formal notice, in which it stated that, by introducing Paragraph 33a into Law No 170/2018 by adopting Law No 136/2020, that Member State had failed to fulfil its obligation under Article 12(2), (3)(b) and (4) of Directive 2015/2302, read in conjunction with Article 4 thereof.

The Slovak Republic replied to that letter of formal notice by letter dated 28 August 2020. In that letter, while acknowledging that the amendment to Law No 170/2018 resulting from Law No 136/2020 derogated from the provisions of Directive 2015/2302, that Member State claimed that the adoption of that amendment was justified on legitimate grounds, since undertakings active in the tourism sector needed an additional period to repay all their customers gradually, failing which they would become bankrupt.

On 30 October 2020, the Commission sent the Slovak Republic a reasoned opinion in which it, first, complained that, by adopting Law No 136/2020, that Member State had failed to fulfil the obligation referred to in paragraph 13 above and, secondly, requested the Slovak Republic to take the measures necessary to comply with that reasoned opinion within two months of its receipt, namely 30 December 2020.

The Slovak Republic replied to that reasoned opinion by letter of 18 December 2020. In that letter, that Member State stated that the legislative amendment at issue was justified in the light of the exceptional situation linked to the scale of the spread of COVID-19 and that the objective of that amendment was not to deprive travellers of their rights, but to grant travel organisers a period during which they could resolve all their contractual relationships with travellers.

Taking the view that, on the expiry of the period laid down in the reasoned opinion and, moreover, on the date on which the present action was brought, Slovak law remained contrary to Directive 2015/2302, the Commission decided to bring the present action.

—

The action

In support of its action, the Commission submits that Paragraph 33a of Law No 170/2018 deprives travellers of their right to terminate a package travel contract and to receive a refund in accordance with Article 12 of Directive 2015/2302, at a time when they are being severely affected by the consequences of the global COVID-19 pandemic. While the effects of the COVID-19 crisis certainly entailed a heightened risk of insolvency for numerous travel organisers, neither Directive 2015/2302 nor any other EU legal act allows Member States to derogate from Article 12.

In that regard, the Commission submits, in the first place, that Article 12 of Directive 2015/2302 was applicable to that pandemic and not only to situations of local or regional amplitude. The occurrence of such a pandemic is covered by the concept of ‘unavoidable and extraordinary circumstances’, referred to in Article 12 and defined in Article 3(12) of that directive. The fact that recital 31 of that directive refers, in that context and by way of example, to the outbreak of a serious disease at the travel destination is not such as to demonstrate that Article 12 concerns only local events.

Moreover, since that concept is linked to that of force majeure, the latter cannot be applied outside the framework defined by Directive 2015/2302.

According to the Commission, although, when that directive was adopted, the possibility of a pandemic of a scale such as that of COVID-19 was not envisaged, that directive was nevertheless specifically designed to deal with such unavoidable and extraordinary circumstances. To accept that Directive 2015/2302 applies in the event of problems on a smaller territorial scale, but not in the event of problems on a larger or worldwide scale, would have absurd consequences.

In addition, it is apparent from Article 4 of Directive 2015/2302, read in the light of recitals 4 and 5 thereof, that that directive is intended to bring about full harmonisation of the matters to which it applies. Paragraph 33a of Law No 170/2018 reflects a desire to protect travel organisers to the detriment of consumers, even though the latter are also affected by the global COVID-19 pandemic. In that regard, although the Slovak Republic decided to protect package travel organisers, numerous other Member States did not do so. Thus, not all EU travellers were able to benefit from the same level of protection, which impeded the dual objective of harmonisation and consumer protection pursued by Directive 2015/2302.

Lastly, the Commission submits, with regard to the immediate risk, alleged by the Slovak Republic, that a large number of package travel organisers might be eliminated, that those organisers could have benefited from certain State aid measures.

,

that that directive does not regulate situations of

force majeure

, which were, by contrast, regulated by Directive 90/314 which preceded it. In that context, it is in no way apparent from Article 3(12) of Directive 2015/2302 that the ‘unavoidable and extraordinary circumstances’ defined in that provision must be unusual and unforeseeable, as the Court, in its settled case-law, requires in order for a particular circumstance to be capable of being characterised as a case of

force majeure

32In addition, according to that Member State, if special legislation had not been adopted, harm may have occurred not only to the interests of travel organisers but also to those of travellers, that is to say those of consumers, since the survival of the undertakings concerned would be imperilled and any refund might be rendered impossible.

33Accordingly, faced with the situation of the global pandemic and its consequences, the Slovak Republic was entitled to adopt measures falling outside the scope of Directive 2015/2302, such as Paragraph 33a of Law No 170/2018, in order to take account of a major shift in the balance between the interests of travellers and those of professionals.

34In the second place, the Slovak Republic submits, in the alternative, that the notification of a replacement tour, provided for in Paragraph 33a of Law No 170/2018, may constitute a refund of the payments made, within the meaning of Article 12 of Directive 2015/2302. That Member State points out that that notification could be exchanged for the provision of other travel services, was covered by insolvency protection, was assignable to other persons and, if it was not used during the period indicated, gave rise to a right to reimbursement in the form of a sum of money of all payments already made.

35In everyday language, the word ‘refund’ does not refer solely to the restitution of a sum of money, but also includes compensation for such payments in another form. That interpretation is also supported by the fact that the relevant provisions of Directive 2015/2302, in particular in the German and English versions, draw a distinction between the grant of a refund and the reimbursement of those payments. Moreover, in the light of the general scheme and purpose of that directive, it is possible to interpret the terms ‘refund’ or ‘provide a refund’ as also authorising the compensation of those payments in a form other than an amount of money.

36In addition, the Slovak Republic observes that the fact that other EU legislation expressly provides for other forms of reimbursement is irrelevant, since those acts differ from Directive 2015/2302, either by their nature or by their fields and objectives. Since the legal relationships established by such measures are not the same, the adoption of any act would require a fresh assessment of the balance between the various rights and legitimate interests of all the addressees of the act in question.

37Directive 2015/2302 is intended to protect travellers and the rights of professional package travel organisers. In that regard, when several rights protected by the EU legal order clash, it is essential to interpret the acts at issue in accordance with the need to reconcile the requirements of the protection of those various rights and striking a fair balance between them (judgment of 31 January 2013, McDonagh,

C‑12/11

, paragraph

62

In the third and last place, the Slovak Republic submits, in the further alternative, that the unfavourable situation linked to the global COVID-19 pandemic could be regarded as constituting a case of

force majeure

within the meaning of the Court’s case-law.

That Member State emphasises that, since that argument is put forward in the further alternative, it is in no way incompatible with the argument, put forward primarily, that Directive 2015/2302 is not applicable to that pandemic. Furthermore, the Commission’s claim that that directive no longer allows the concept of

force majeure

39 to be applied outside the framework defined by that directive is incorrect. It is necessary to distinguish between the application of that concept, on the one hand, in so far as it concerns the rights and obligations established in the context of the contractual relationship between the organiser and the traveller, provided for by that directive, and, on the other hand, as a ground justifying a State’s failure to fulfil obligations.

In the present case, the conditions governing reliance on

force majeure

40, understood in the latter sense, derived from the case-law of the Court of Justice are satisfied. The global COVID-19 pandemic and the resulting significant limitation of tourism on a global scale constitute circumstances beyond the control of the Slovak Republic, which the latter could neither foresee nor prevent, even by making all possible efforts and exercising due care.

41That Member State states that the lack of liquidity and the risk of insolvency of travel agencies and of negative repercussions for the entire economic sector at issue, resulting from the evolution of that pandemic and the measures relating thereto, constituted insurmountable difficulties which temporarily prevented it from discharging its obligations under Directive 2015/2302. That being said, the application of Paragraph 33a of Law No 170/2018 was limited to the necessary period and has now ceased, given the need to ensure a high level of consumer protection and to strike a fair balance between that level and the competitiveness of undertakings.

42As regards the relevance of the example of a State aid measure, such as that adopted in Denmark by mobilising the Rejsegarantifonden (Travel Guarantee Fund), the Slovak Republic observes that the possibility of granting State aid through a guarantee fund could have been limited by the way in which the national insolvency protection system was organised, which would have required a complex change in Slovak law that would have been impossible to achieve at a time of acute crisis. Moreover, State aid should be viewed as a measure of last resort (

ultima ratio

), since it constitutes a substantial interference with competition and the functioning of the market.

Findings of the Court

43By its action, the Commission complains that the Slovak Republic has failed to fulfil its obligations under Article 12(2), (3)(b) and (4) of Directive 2015/2302, read in conjunction with Article 4 thereof, by adopting Paragraph 33a of Law No 170/2018, in so far as the latter article provides, in essence, first, that where, as a result of the exceptional situation due to the global COVID-19 pandemic, it was not possible to perform a package travel contract, the organiser was allowed to offer the travellers concerned a replacement package tour instead of a refund of any payments made, within the meaning of Article 12 of Directive 2015/2302, and, secondly, that those travellers were then entitled to that refund only after 31 August 2021 and no later than 14 September 2021.

44In the first place, it is necessary to examine whether that exceptional situation may fall within the scope of the concept of ‘unavoidable and extraordinary circumstances’, within the meaning of Article 12 of Directive 2015/2302, with the result that Article 12(2) and (3)(b) of Directive 2015/2302 may apply to the situations envisaged in Paragraph 33a of Law No 170/2018.

45In order to answer that question, it should be borne in mind that that concept is defined in Article 3(12) of Directive 2015/2302 as meaning ‘a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken’.

46Recital 31 of that directive clarifies the scope of that concept by stating that ‘[it] may cover for example warfare, other serious security problems such as terrorism, significant risks to human health such as the outbreak of a serious disease at the travel destination, or natural disasters such as floods, earthquakes or weather conditions which make it impossible to travel safely to the destination as agreed in the package travel contract’.

47Furthermore, it is apparent from Article 12(2) of Directive 2015/2302 that unavoidable and extraordinary circumstances may justify termination by the traveller concerned, giving him or her a right to a full refund of any payments made for the package, only where those circumstances occur ‘at the place of destination or its immediate vicinity’ and ‘significantly [affect] the performance of the package, or … significantly affect the carriage of passengers to the destination’.

48While, for the purposes of the termination of a package travel contract, the classification of a given event as a situation falling within the concept of ‘unavoidable and extraordinary circumstances’, within the meaning of Article 12 of Directive 2015/2302, necessarily depends on the specific circumstances of the particular case and, in particular, on the travel services specifically agreed upon and the consequences of that event at the intended destination, the fact remains that, as the Commission has submitted, a global health crisis such as the COVID-19 pandemic must, as such, be regarded as capable of falling within the scope of that concept.

49Such an event is clearly beyond all control and its consequences could not have been avoided even if all reasonable measures had been taken. That event also entails the existence of ‘serious risks to human health’ referred to in recital 31 of that directive.

50In that regard, it is irrelevant that, like Article 12(2) of the same directive, that recital illustrates those terms by using the example of ‘the outbreak of a serious disease at the travel destination’, since that clarification is intended not to restrict the scope of the concept of ‘unavoidable and extraordinary circumstances’ to local events, but to make it clear that those circumstances must, in any event, arise in particular at the intended travel destination and, as such, significantly affect the performance of the package concerned.

51In that regard, if the spread of a serious disease at the relevant travel destination is capable of falling within the scope of that concept, the same must a fortiori be true of the spread of a serious disease on a global scale, since the effects of the latter will also be felt at the relevant travel destination.

52Furthermore, an interpretation of Article 12(2) and (3)(b) of Directive 2015/2302 according to which that provision applies only to events that are local in scope, to the exclusion of events of a larger scale, would run counter, first, to the application of the principle of legal certainty, since, in the absence of any distinguishing criterion laid down for that purpose by that directive, the line separating those two categories of events could be vague and variable, which would ultimately render uncertain the benefit of the protection conferred by that provision.

53Secondly, such an interpretation would be inconsistent with the objective pursued by Directive 2015/2032, which consists, according to Article 1 of that directive, read in the light of recital 5 thereof, in contributing to the proper functioning of the internal market and to the achievement of a high and as uniform as possible level of consumer protection (see, to that effect, judgment of 12 January 2023, FTI Touristik (Package travel to the Canary Islands),

C‑396/21

, paragraph

29

54That interpretation would mean that travellers who terminate their package travel contract by invoking the outbreak of a locally contained disease would not be required to pay termination fees, whereas travellers who terminate that contract due to the outbreak of a disease on a global scale would have to pay such fees, with the result that the travellers concerned would receive a lower level of protection in the event of a global health crisis than in the event of an outbreak of a locally contained disease.

55As regards the objective of consumer protection, the Slovak Republic submits, however, that that protection cannot be dissociated from travel organisers’ insolvency protection, provided for in Article 17 of Directive 2015/2302, which does not refer to the coverage of extremely unlikely risks, such as the outbreak of a global pandemic. The Slovak Republic infers from this that the application of the right to a full refund provided for in Article 12(2) and (3)(b) of that directive also should not be extended to such situations.