The development and popularity of mass tourism within the scope of demand has increased the demand for package tours, and package tours have gained a very important place in the tourism sector in this direction. The will and desire to travel lies at the root of tourism. Tourism, which used to be in the luxury needs category, is now shown in the vital needs category. Millions of people travel every year to get away from the heavy responsibility imposed by working life and stress of daily life. At the same time, objectives such as improving the culture and perspective by seeing different places constitute the basis of the phenomenon of tourism. Nowadays, the desire to travel is triggered day by day by reasons such as the increase in vacation opportunities, the increase in the welfare level, the determination of the boundaries of the working life, the development of transportation opportunities and the decrease of the borders between countries.
One of the most important sectors damaged by the coronavirus (Covid-19) epidemic, which has become a national and international crisis, is undoubtedly the tourism sector. Because the coronavirus seriously affects public health, freedom of travel has been taken away from us. The Right to Travel is the rights guaranteed even in our Constitution, and it is an indispensable and inescapable fundamental human right that all individuals use for education, health, travel, tourism, religious visits and other reasons at home and abroad. This freedom, guaranteed by our Constitution, is also regulated in the European Convention on Human Rights. As such, the right to travel is an inalienable and indispensable right, which is governed by both national and international provisions of law.
In order for package tour agreements to exist, transportation and accommodation services must be provided together or at least one of them and another tourism services independent of these services must be combined, and the contract period must exceed at least twenty-four hours or include overnight accommodation. A definition has been made in this direction in Article 51 of the Law on the Consumer Protection (Tüketicinin Korunması Hakkında Kanun, LCP). According to the article: Package tour agreements are contracts where transportation, accommodation is sold or promised to be sold by package tour organizers or agents, at least two of the other tourism services not connected to transportation and accommodation services together, at an all-inclusive price and the service covers more than twenty four hours or includes overnight accommodation. A similar definition is regulated in the sub-clause f of article 4 of the Package Tour Agreements Regulation. Considering the definition in the law and the regulation, it would be accurate to categorize the elements of the Package Tour agreement as; integrity of performances, combination of essential performances, price and duration.
Person who benefit from the services provided by the travel organizer and who are under an obligation to pay a certain fee to the travel organizer in return for these services and commercial real or legal persons who provide services to the consumer for professional purposes or act on behalf or account of the service provider, including public entities, constitute parties of Package Tour Agreements. Therefore, the parties to the package tour agreement are not only natural persons but also legal persons who acquire, use or benefit from a good or service for commercial or non-professional purposes.
Agreement is a legal transaction established by mutual declaration of intention of the parties. In order to establish a Package Tour agreement; the intention of the two parties, which is the proposal and acceptance, must be mutual and consentaneous. The agreement can be arranged by real and legal persons authorized to make an agreement, and can be made in writing according to the sub-clause 1 of article 4 of the LCP.
In the Package Tour Agreement, the parties may determine various rights and obligations within the framework of the freedom of contract, provided that they are not contrary to the law and morality. Since the agreement is arranged as a whole, the organizer of the travel cannot get rid of its debt by fulfilling some individual acts. Travel performances should be performed as a whole and complementing each other. The participant to the travel has some main debts as well as accessory debts. Within the scope of the accessory debt, the participant must act in accordance with the purpose of the agreement. Responsibilities will arise if participants does not fulfill their obligations. If it cannot be deduced from the principles set forth in the travel agreement, what are the debts and the fulfilled ways of the debts are, all the conditions will be determined according to the rules of good faith.
In Package Tour agreements, there are force majeure, unexpected and extraordinary situations among the termination right for both parties and the reasons that terminate the agreement automatically. What is important here is what can be understood from these concepts. Although force majeure specific to Package Tour agreements is not defined in the LCP and the Regulation, the definition of force majeure is generally made as follows: "An event that it cannot be prevented or predicted even if the highest degree of care is shown; or originating from nature, unrelated to the business and operation of the debtor, outside its sphere of influence". In order for an event to be considered as force majeure, a compulsory and/or compelling event must have occurred. This event may be natural, social, legal or a behavior dependent on human factor. On the other hand, there shall not be a connection between the damaging event and the enterprise where the event occurred, force majeure should be inevitable and there should be a suitable causal connection between the force majeure and the breach of the agreement.
IS THE COVID-19 OUTBREAK A FORCE MAJEURE?
The COVID-19 virus, which is appeared in China and spread all over the world, has become a global threat and has been qualified as an epidemic by the World Health Organization (WHO). As a result of this qualification, the case of emergency experienced was declared as a threat to public health (pandemic) by the World Health Organization. With this epidemic which has become an agenda all over the world, not only our daily life but also international business life is affected. The measures taken within the scope of the fight against the epidemic have seriously affected the production, logistics and international supply chains as well as tourism.
In the sub-clause 1-c of article 14 of the Package Tour Agreements Regulation, the force majeure situation is counted among the reasons that relieve the consumer from responsibility, and the same result can be obtained from the purpose and scope arrangement of the LCP, which prioritizes the health and protection of the consumer. Therefore, a justified reservation has arisen in terms of health for traveling consumers in Package Tour agreements and many consumers are trying to cancel their travel plans abroad and domestically due to the coronavirus epidemic. At the stage of the serious effects of the current situation and the epidemic, airlines and accommodation facilities show the necessary flexibility to the consumers in cancellation, and the consumer is given the right of choice to cancel the Package Tour or postpone it to a later date. Forasmuch as the current process is not only a pandemic, but goes down in history as an extraordinary process in which even the rights under the Constitution, such as transportation and travel, are restricted. Within the scope of the stated, it would be correct to consider the Covid-19 epidemic as force majeure, considering both the legal regulations and the judicial decisions taken in time for other epidemic diseases in the past years, since the execution of the contractual acts becomes impossible.
HOW CAN PACKAGE TOUR AGREEMENTS BE TERMINATED UNDER THE COVID-19 OUTBREAK?
According to Article 136 of the Turkish Code of Obligations; parties are required to perform their debts in accordance with the terms of the legal relationship they have established between them. In this context, the debtor who causes damage to the creditor by not performing his debt is obliged to compensate for this loss. In the event that a debt becomes impossible, by creating an exception to the specified rule, it is regulated that if the debtor proves that the performance cannot be fulfilled due to a reason that cannot be attributed and will be released from the debt to the creditor and the agreement will be terminated.
When the reasons such as the World Health Organization declaring the coronavirus as a global epidemic and affecting the whole world, considering the reasons such as advising the public not to go out on the streets, closing the borders with many countries and introducing quarantine practices in the declarations made by the administration, it should be accepted that the fulfillment of the debt is constantly impossible in package tour agreements.
The agreement caused by the epidemic has suffered not only the consumers but also the travel organizers, and the amendment made by the Ministry of Commerce by adding a temporary article to the package tour agreement regulation was entered into force by publishing on the Official Gazette on May 15, 2020. With this amendment made in the Regulation, the Ministry of Commerce, which added temporary articles to the Regulation, made an exception to the rule that the refund arising from the termination of agreements within 14 days. In this context, due to the Covid-19 epidemic, about refunds for package tour agreements which are foreseen to be executed as of 05/02/2020 and include air transportation, the consumer is entitled to choose to receive refund excluding the costs arising from the compulsory taxes, fees and similar legal obligations is paid within fourteen days from the date that termination notification received by tour organizer or intermediary of it, or to receive refund paid to the consumer, excluding compulsory taxes, duties and expenses arising from similar legal obligations, shall be returned within 14 days following the 60th day after the flight restraint is ceased, provided that the consumer is informed and it's explicitly consent is given. It is also stated in the continuation of the article that the burden of proof regarding informing the consumer about which of the above mentioned ways to be preferred in writing or with the fixed data keeper and getting consumer's approval is belonged to the package tour organizer or its agent within the scope of the temporary article 1.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
