Dr. Karmen Lutman is an Assistant Professor at the Faculty of Law, University of Ljubljana. Her teaching concerns law of obligations, property law and introduction to private law. In her research she focuses on the law of restitution, unjustified enrichment, EU consumer and travel law. Karmen received a BA in Law from the University of Ljubljana in 2012 and proceeded to take an MA degree in German and European Law and Legal Practice at the Faculty of Law, Humboldt University of Berlin, funded by the German Academic Exchange Service and the Fundation Parus. Supervised by Prof. Dr. Gerhard Dannemann she defended her master thesis Unwinding Mutual Contracts: The Change of Position Defence in German and English Law in 2014. During her postgraduate studies, she worked as a Judicial Trainee at the Court of Appeal in Ljubljana and passed the state bar exam in 2016. Karmen joined Faculty of Law in Ljubljana as an Assistant in October 2016, where she completed her doctorate in private law and defended her doctoral thesis Unjustified Enrichment in Comparative and Slovenian Law in 2019. She is the author of numerous scientific publications in the field of private law, including consumer protection and travel law. She has also spent time as a Visiting Researcher at the Max Planck Institute for Comparative and Private International Law in Hamburg.
Pacta sunt servanda in times of pandemic: consumer travel law at the crossroads
Abstract:
Travel and tourism industry are among the most affected sectors in the ongoing COVID-19 pandemic. The resorts remained empty for the most of the year 2020 and it is still difficult to predict how travel will look like in the next few years. Due to mass cancellations, tourism and travel service providers have found themselves in an unenviable position, as legislation in this area is often more favourable to passengers.
Due to its international dimension, travel law has traditionally been subject of international and regional legal instruments. Several regulations and directives have been adopted in the EU in order to protect travellers’ rights. Although the principle of pacta sunt servanda is deeply rooted in the European contract law, the legislation on consumer travel law allows for termination of a contract in the event of unavoidable and extraordinary circumstances, which is a manifestation of a general legal doctrine of clausula rebus sic stantibus. Pandemic as such does not automatically constitute an unavoidable and extraordinary circumstance, which means that other relevant circumstances of the case should also be taken into consideration when assessing the lawfulness of a contract termination, particularly the date of travel and travel destination, public health restrictions, circumstances at the time of termination of contract, and information available to the contracting parties at the time of conclusion of contract. Carving out the scope and key features of the concept of unavoidable and extraordinary circumstances and setting its boundaries brings us to the core issue as to how pacta sunt servanda is (to be) understood in consumer travel law in the ongoing pandemic.
The aim of this paper is to analyse legal challenges consumer travel law is facing in the current pandemic from the perspective of the principle of pacta sunt servanda. It focuses on the notion of unavoidable and extraordinary circumstances in the field of package travel and transport legislation in the EU law. By doing so, the author takes into consideration various stages of the COVID-19 pandemic and critically assesses the position of a traveller and a service provider with regard to the right to terminate the contract and its consequences. Furthermore, the study includes some considerations of the first court decisions on this matter taken in the EU member states.