Opinion of Advocate General Medina delivered on 23 March 2023.

JurisdictionEuropean Union
ECLIECLI:EU:C:2023:245
Date23 March 2023
Celex Number62022CC0083
CourtCourt of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 23 March 2023(1)

Case C83/22

RTG

v

Tuk Tuk Travel SL

(Request for a preliminary ruling from the Juzgado de Primera Instancia nº 5 de Cartagena (Court of First Instance No 5, Cartagena, Spain))

(Reference for a preliminary ruling – Article 267 TFEU – Directive (EU) 2015/2302 – Package travel and linked travel arrangements – Article 5(1) – Pre-contractual information obligations – Annex I, Parts A and B – Standard information form – Article 12(2) – Termination of a package travel contract – Unavoidable and extraordinary circumstances significantly affecting the performance of the package – COVID‑19 – Right to a full refund of any payments for the package – Request by the traveller of a partial refund – National court – Examination by the court of its own motion – Principles of national procedural law)






1. Among the sectors most seriously and immediately affected by the COVID‑19 pandemic was the sector of travel and tourism. (2) The uncertainty the pandemic provoked and its rapid spread across different continents led many travellers to terminate their package travel contracts before emergency measures were adopted by governments and borders were closed. That context of uncertainty raised doubts as to the exact scope of the rights and obligations of the parties to a package travel contract and, more specifically, made it difficult for travellers to exercise their right to terminate the contract without paying a termination fee, pursuant to Article 12(2) of Directive 2015/2302. (3)

2. Against that backdrop, the present reference for a preliminary ruling raises a pure matter of procedural law. It relates to the powers of the courts to recognise, of their own motion, the rights consumers derive from Directive 2015/2302 and, more specifically, the right of the traveller to terminate the package travel contract without paying any termination fee in the event of unavoidable and extraordinary circumstances, according to the conditions laid down in Article 12(2) of that directive. Moreover, it raises the issue of whether a court should have the power to award a consumer, of its own motion, more than what he or she has claimed in order to ensure the effective exercise of the rights he or she derives as a traveller under that directive.

3. There is settled and abundant case-law on the powers of national courts to determine of their own motion whether a term of a contract is unfair. That line of case-law, underpinned by considerations of protection of the weaker party, comprises some of the landmark judgments in EU consumer law, (4) such as Océano Grupo, (5)Cofidis (6) or Aziz. (7) The judgment in Océano Grupo has been considered as ‘a powerful tool to eliminate unfairness and re[-]establish social justice in contract law’, (8) while the judgment in Cofidis has inspired even the arts. (9) After more than two decades of development and consolidation of that line of case-law, the most recent judgments concentrate on the clarification of aspects of the ex officio doctrine, striking a sometimes delicate balance between effective consumer protection and fundamental principles of procedural law. (10) From that perspective, the ex officio doctrine seems to be reaching a stage of ‘maturity’ in its development or, as one author aptly puts it, the ‘age of reason’. (11) The present case is part of that stage.

Legal framework

European Union law

Directive 2015/2302

4. Chapter II of Directive 2015/2302 is headed ‘Information obligations and content of the package travel contract’. Under that chapter, Article 5, entitled ‘Pre-contractual information’, provides:

‘1. Member States shall ensure that, before the traveller is bound by any package travel contract or any corresponding offer, the organiser and, where the package is sold through a retailer, also the retailer shall provide the traveller with the standard information by means of the relevant form as set out in Part A or Part B of Annex I, and, where applicable to the package, with the following information:

(a) the main characteristics of the travel services:

(g) information that the traveller may terminate the contract at any time before the start of the package in return for payment of an appropriate termination fee, or, where applicable, the standardised termination fees requested by the organiser, in accordance with Article 12(1);

3. The information referred to in paragraphs 1 and 2 shall be provided in a clear, comprehensible and prominent manner. Where such information is provided in writing, it shall be legible.’

5. Article 12(1) and (2) of Directive 2015/2302 provides:

‘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. …

2. Notwithstanding paragraph 1, the traveller shall have the right to terminate the package travel contract before the start of the package without paying any termination fee in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination. In the event of termination of the package travel contract under this paragraph, the traveller shall be entitled to a full refund of any payments made for the package, but shall not be entitled to additional compensation.’

6. Article 23 of Directive 2015/2302, headed ‘Imperative nature of the Directive’, provides in paragraphs 2 and 3 thereof:

‘2. Travellers may not waive the rights conferred on them by the national measures transposing this Directive.

3. Any contractual arrangement or any statement by the traveller which directly or indirectly waives or restricts the rights conferred on travellers pursuant to this Directive or aims to circumvent the application of this Directive shall not be binding on the traveller.’

7. Article 24 of that directive, entitled ‘Enforcement’, states:

‘Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.’

8. Part A of Annex I to Directive 2015/2302, entitled ‘Standard information form for package travel contracts where the use of hyperlinks is possible’, sets out, in a text box, the content of that form and indicates that, by following the hyperlink, the traveller will receive the following information:

‘Key rights under Directive (EU) 2015/2302

– Travellers may terminate the contract without paying any termination fee before the start of the package in the event of exceptional circumstances, for instance if there are serious security problems at the destination which are likely to affect the package.

…’

9. Part B of Annex I to Directive 2015/2302, entitled ‘Standard information form for package travel contracts in situations other than those covered by Part A’, sets out, in a text box, the content of that form, followed by the same key rights under that directive as those set out under Part A of Annex I to that directive.

Spanish law

The General Law for the protection of consumers and users

10. Articles 5 and 12 of Directive 2015/2302 are transposed into Spanish law by Articles 153 and 160, respectively, of Real Decreto Legislativo 1/2007, por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias (Royal Legislative Decree 1/2007 approving the consolidated text of the General Law for the protection of consumers and users and other supplementary laws; ‘the General Law for the protection of consumers and users’) of 16 November 2007 (BOE No 287 of 30 November 2007, p. 49181).

Law on Civil Procedure

11. Article 216 of Ley 1/2000 de Enjuiciamiento Civil (Law 1/2000 on the Code of Civil Procedure) of 7 January 2000 (BOE No 7 of 8 January 2000, p. 575; ‘the LEC’) provides as follows:

‘Civil courts before which cases are brought shall dispose of them on the basis of the facts, evidence and claims put forward by the parties, save where otherwise provided by law in specific cases.’

12. According to Article 218(1) of the LEC:

‘Legal decisions must be clear and precise and must be commensurate with the requests and other claims of the parties, made in a timely manner in the course of the proceedings. Those decisions must contain the requisite declarations, find in favour of or against the defendant and settle all points in dispute which form the subject matter of the litigation.

The court, without departing from the cause of action by accepting elements of fact or points of law other than those which the parties intended to raise, must give its decisions in accordance with the rules applicable to the case, even though they may not have been correctly cited or pleaded by the parties to the procedure.’

13. Article 412(1) of the LEC is worded as follows:

‘Once the subject matter of the proceedings has been established in the application, in the defence, and, as the case may be, in the counterclaim, the parties may not vary it at a later date.’

Facts, procedure and the questions referred

14. On 10 October 2019, the applicant purchased from the defendant, Tuk Tuk Travel SL, a package trip for two persons to Vietnam and Cambodia, departing from Madrid (Spain) on 8 March 2020 and returning on 24 March 2020.

15. The applicant paid EUR 2 402 at the time of signature of the contract, whereas the full cost of the trip was EUR 5 208. The general conditions of the contract provided information about the option ‘to cancel the trip before it starts upon payment of a termination fee’. No contractual or pre-contractual information was included regarding the possibility to cancel the trip in the event of...

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2 practice notes
  • Opinion of Advocate General Richard de la Tour delivered on 29 June 2023.
    • European Union
    • Court of Justice (European Union)
    • 29 June 2023
    ...dinanzi alla Corte nella causa Tuk Tuk Travel [C‑83/22; le conclusioni dell’avvocato generale Medina nella causa Tuk Tuk Travel (C‑83/22, EU:C:2023:245) sono state lette il 23 marzo 2023] e nelle cause riunite DocLX Travel Events (C‑414/22) e Kiwi Tours (C‑584/22), nelle quali le conclusion......
  • Opinion of Advocate General Emiliou delivered on 14 September 2023.
    • European Union
    • Court of Justice (European Union)
    • 14 September 2023
    ...sul carattere imperativo del controllo, v. conclusioni presentate dall’avvocato generale Medina nella causa Tuk Tuk Travel (C‑83/22, EU:C:2023:245, nota 32). 46 Ricordo che dall’articolo 20, ultimo comma, dello Statuto della Corte di giustizia dell’Unione europea si evince che una causa può......
2 cases
  • Opinion of Advocate General Richard de la Tour delivered on 29 June 2023.
    • European Union
    • Court of Justice (European Union)
    • 29 June 2023
    ...dinanzi alla Corte nella causa Tuk Tuk Travel [C‑83/22; le conclusioni dell’avvocato generale Medina nella causa Tuk Tuk Travel (C‑83/22, EU:C:2023:245) sono state lette il 23 marzo 2023] e nelle cause riunite DocLX Travel Events (C‑414/22) e Kiwi Tours (C‑584/22), nelle quali le conclusion......
  • Opinion of Advocate General Emiliou delivered on 14 September 2023.
    • European Union
    • Court of Justice (European Union)
    • 14 September 2023
    ...des zwingenden Charakters der Überprüfung vgl. Schlussanträge der Generalanwältin Medina in der Rechtssache Tuk Tuk Travel (C‑83/22, EU:C:2023:245, Fn. 46 Wie sich aus dem letzten Absatz von Art. 20 der Satzung des Gerichtshofs ergibt, kann über eine Rechtssache ohne Schlussanträge des Gene......

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