Legal options for travelers and travel agencies during the state of emergency declared in connection with the COVID-19 pandemic
In light of the spread of the coronavirus, the Ministry of Foreign and European Affairs of the Slovak Republic has urged citizens to consider whether travel to countries where the disease has been confirmed is necessary. Several countries have declared a state of emergency and imposed strict travel restrictions to prevent the spread of COVID-19. On May 20, 2020, an amendment to Act No. 170/2018 Coll. on Package Tours, Related Tourism Services, Certain Conditions for Doing Business in Tourism, and on Amendments to Certain Acts, as amended by Act No. 119/2019 Coll. (hereinafter referred to as the “Tourism Act”), which, in connection with the declaration of a state of emergency due to the spread of COVID-19, introduced a fundamental change in the options for withdrawing from a tour contract.
Pursuant to Section 33a(1) of the Package Travel Act, if, as a result of a state of emergency due to the spread of COVID-19 in the territory of the Slovak Republic or a similar situation at the destination, or at any point along the tour route, it is not possible to provide the traveler with the essential elements of tourism services under the concluded travel contract (hereinafter also referred to as the “contract”), the travel agency is entitled to
a) propose an amendment to the tour contract
b) if the traveler does not accept the proposed amendment, it is entitled to send the traveler a notice regarding an alternative tour.
The travel agency is required to prepare the notice of a substitute tour in writing and deliver it on a durable medium in the same manner as the tour contract was delivered to the traveler, unless the contracting parties agree otherwise. The notice of the substitute tour must include, in particular:
a) the amount of payments received under the original tour contract
b) information that the essential characteristics of the tourism services contained in the original tour contract may be changed for the substitute tour upon agreement with the traveler
c) information regarding the traveler’s right to assign the tour contract pursuant to § 18
The essential characteristics of travel services within the meaning of § 14(2) of the Tour Act include, in particular:
1. the destination or destinations; 2. the start and end dates of the tour, the length of stay including dates, and if accommodation is part of the tour, the number of nights for which accommodation is provided;
2. the route of travel, type and category of the means of transport, class and transport connections, departure and return times, and if the exact time has not yet been determined, the approximate departure and return times and the expected locations and duration of stops;
3. the name, location, category, class, amenities, and basic characteristics of the accommodation facility; for the class, information must also be provided regarding the country according to which the facility is classified;
4. the method, scope, and form of meals;
5. the program at the destination, trips, excursions, or other services included in the total price of the tour;
6. information on the general suitability of the trip for persons with reduced mobility and, upon the traveler’s request, detailed information on the suitability of the trip, taking into account the traveler’s needs;
If the traveler accepts the proposed amendment to the contract pursuant to Section 33a(1)(a) of the Package Travel Act and the price of the trip subject to the amendment differs from the total amount of payments received under the package travel contract, the contracting parties shall mutually settle the difference between the price of the tour that is the subject of the contract amendment and the total amount of payments received under the (original) package tour contract.
If the traveler does not accept the proposed amendment to the contract and a substitute tour is agreed upon between the traveler and the travel agency only after the notice of the substitute tour has been delivered (i.e., the procedure under Section 33a(1)(b) applies) in a situation where the price of the substitute tour would differ from the sum of payments received under the (original) tour contract, the contracting parties shall mutually settle the difference between the amount of the (original) tour and the price of the substitute tour within 14 days from the date on which the travel agency and the traveler agreed on the provision of the substitute tour.
The travel agency is not, pursuant to Section 33a(13) of the Travel Act, entitled during an emergency declared in connection with the COVID-19 disease to require the traveler to make payments toward the tour price; this does not apply only if the traveler accepts the proposed amendment to the tour contract pursuant to Section 33a(1)(a).
It is worth noting here that although the travel agency is entitled to send the traveler a notice regarding a substitute tour,
pursuant to Section 33a(3)(b) of the Travel Act, the essential features of the travel services contained in the originally concluded travel contract may be changed in the substitute trip only upon agreement with the traveler. It can therefore be concluded that while the amendment, so to speak, “forces” travelers to remain in a contractual relationship with the travel agency, it simultaneously requires that any changes concerning the essential characteristics of tourism services be approved by the traveler themselves in the case of a substitute tour. In an effort to avoid deadlock situations where the traveler does not agree to the substitute tour (or to any of its essential characteristics), and consequently the travel agency is unable to arrange a substitute tour pursuant to Section 33a(1)(b) b) (and thus maintain the contractual relationship with the traveler), we therefore recommend in advance that travel agencies ensure replacement trips correspond as closely as possible to the quality, price, and other services originally agreed upon in the travel contract with individual travelers.
Pursuant to Section 33a(7), the travel agency is required to agree with the traveler on the provision of a substitute tour no later than August 31, 2021. If the travel agency fails to agree with the traveler on the provision of a substitute tour by the aforementioned deadline, it is deemed that the travel agency has withdrawn from the tour contract and is obligated to refund the traveler all payments it received under the tour contract, without delay, no later than September 14, 2021.
The amendment also regulates withdrawals from contracts pursuant to Section 21(2) (i.e., the traveler withdrew) or pursuant to paragraph 3(b) (i.e., the travel agency withdrew), which occurred between March 12, 2020, and May 20, 2020, if, in such a case, the travel agency has not yet refunded to the traveler all payments it received under the travel contract, it is entitled to proceed against these travelers in accordance with Section 33a(1), i.e., it is entitled to propose a modification of the contract to the traveler, and if the proposed modification is not accepted, it is entitled to send the traveler a notice regarding an alternative trip and subsequently agree on an alternative trip with the traveler.
If, during the period from March 12, 2020, to May 20, 2020, a passenger withdrew from the tour contract pursuant to Section 21(1)
(i.e., with the obligation to pay compensation), and the compensation has not yet been settled, it is again necessary to proceed in accordance with Section 33a(1) of the Package Travel Act.
With regard to the passenger’s right to refuse a substitute tour, pursuant to Section 33a(4) of the Package Travel Act, the passenger may do so within 14 days of the date of receipt of the notice of the substitute tour, provided that the passenger is
a) registered as a job seeker during the emergency situation caused by the COVID-19 pandemic in the Slovak Republic, as evidenced by a written notification of their registration as a job seeker;
b) a self-employed person or a single-member limited liability company that has been granted a financial contribution under a project to support the maintenance of employment in connection with the declaration of a state of emergency, a state of emergency, or a state of exception and the elimination of their consequences, as evidenced by a confirmation of the grant of the aforementioned contribution,
c) a single parent who has been granted entitlement to pandemic sick leave, as evidenced by a confirmation of entitlement to said sick leave and a sworn statement regarding the fact that they are a single parent
d) a person who is pregnant as of the date of delivery of the notice regarding the substitute tour, as evidenced by a medical certificate
e) a person aged 65 (inclusive) or older, as evidenced by the date of birth on their ID card or other similar identification document.
If a traveler refuses the alternative trip, the travel agency is obligated to refund all payments received from the traveler under the travel contract without any penalty, immediately, and no later than 14 days from the date of receipt of the refusal of the alternative trip.
If, under the terms of the concluded travel contract, the trip is to be provided to multiple travelers, and only some of them meet any of the above conditions, then only those travelers are entitled to refuse the substitute trip within 14 days of the date of receipt of the notice regarding the substitute trip. The travel agency is obligated to refund the payments it received under the travel contract without charging a cancellation fee to those participants who will not participate in the substitute tour, again without delay, no later than 14 days from the date of receipt of the refusal of the substitute tour.
With regard to the right of the traveler to transfer the travel contract pursuant to Section 18 of the Travel Act. The traveler is entitled to notify the travel agency in writing that another person who meets all the agreed conditions for participation in the trip will participate in the trip in his or her place.
This person’s consent to the transfer of the contract must be included in the notification. The change of traveler is effective vis-à-vis the travel agency if the notification was delivered to the travel agency within a reasonable time, but no later than seven days before the start of the tour, unless the contracting parties have agreed on a shorter period. On the date of delivery of the notice, the person named in the notice becomes the traveler.
The original traveler and the new traveler are jointly and severally liable for payment of the tour price and all fees, surcharges, and other costs incurred in connection with the change of traveler and of which the travel agency informs them. However, these costs must not be unreasonable and must not exceed the actual costs incurred by the travel agency as a result of the change of traveler. The travel agency is required to provide the new traveler with proof of these additional costs.
