The Supreme Court in its Review as of on judicial practice related to the application of legislation in the context of measures to combat the spread of COVID-19 No.31 (“Review”), paid special attention to issues in the field of tourism and air transportation.
1. Pre-trial procedure for settling disputes on the charging of funds under the contract on the sale of a tourist product
The Supreme Court pointed out that the current legislation does not provide for a mandatory pre-trial procedure for disputes on charging the funds under a contract on the sale of a tourist product. The procedure for recovering funds established by the Regulation2 is not a way of pre-trial settlement of the dispute, that is why non-compliance with the procedure is not a ground for suspension of a statement of claim. Thus, if a tourist trip did not take place due to the imposed restrictions, tourists have the right to file a lawsuit skipping pre-trial procedure.
2.A refund for the tourist product in connection to hard situation
Paragraph 6 of the Regulations stipulates that upon the request of the customer over age 65 years, or the customer who is in a difficult life situation, the tour operator is obliged to return the sum paid for tourism product within 90 calendar days from the date of the request, but not later than 31 December 2021. In particular, the legislator attributed the following circumstances to a difficult life situation:
- temporary incapacity to labor for more than 2 months in a row;
- egistration as an unemployed person with the Employment Service.
In order to exercise the right the specified grounds must take place in full or in part within the period of validity of the Provision, regardless of the date of occurrence of the relevant circumstance. The date of the beginning of such events is not relevant.
3. Age of tourists when returning funds
As mentioned above the Regulation provides for a special procedure for cancellation of tourist service and returning money for people who have reached the age of 65. At the same time, the Supreme Court pointed out that it has no legal significance how old the person are on whose behalf and at whose expense tourist products for the elderly persons were purchased.
4. Acquisition of the basis for the benefit after the conclusion of the air carriage contract
By virtue of para. 2 art. 10 of the Regulation on the Contract for the Carriage of a Passenger by Air3 a passenger recognized as a disabled person of group I or II, a disabled child, as well as a veteran of the Great Patriotic War, a person accompanying a disabled person of group I or a disabled child, a person who has a certificate of a multi-children family or other documents confirming the status of a large family, is entitled to submit an application for a refund of the carriage fee before the expiration of 3 years from the date of departure of the flight specified in the ticket, and also before the date of air transportation specified in the ticket.
As the Supreme Court explained a passenger can apply with such a request even if he or she has acquired a certain legal status after the conclusion of an air transportation contract.
5. Does the carrier have to pay compensation if it refuses to return the money for the ticket to the passenger?
Among other things, Regulation on the Contract for the Carriage of a Passenger by Air provides the carrier's right to unilaterally change the terms of a contract or refuse to perform it, as well as the procedure and terms for returning the carriage fee paid in the event of a threat and (or) the occurrence of emergencies, the introduction of a high-alert mode or an emergency situation in the entire territory of the Russian Federation or in its part.
The Supreme Court highlighted that the carrier cannot pay a penalty, compensation for moral damage or a fine, since such cancellation is an objectively forced measure to prevent the spread of the virus. Consequently, the passenger's rights cannot be recognized as violated.
2Regulations on the specifics for 2020 and 2021 of the execution and termination of the agreement on the sale of a tourist product concluded through March 31, 2020 inclusively, approved by the Government of the Russian Federation dated July 20, 2020 No. 1073
3Resolution of the execution and termination of the agreement on the sale of a tourist product of the Government of the Russian Federation of July 6, 2020 No. 991 "On Approval of the Regulation on the specifics of the performance of the passenger air transportation contract, including the right of the carrier to unilaterally change the terms of such a contract or refuse to perform it, as well as on the procedure and terms for returning the carriage fee paid for air transportation in the event of a threat and (or) the occurrence of certain emergencies, the introduction of a high–alert mode or an emergency situation on the entire territory of the Russian Federation or on its part"