The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry Estoril | Salamanca | Milan 2022

© Carlos Torres, F. Javier Melgosa Arcos, Tatjana Josipović, Inmaculada González Cabrera, Marina Gunare, Alona Rogale-Homika, Marcelo Oliveira, Francesco Morandi, Evanthia Kardoulia, António Osório, Ardyllis Alves Soares, KláraDvorakova, Alessandra Corrado, Sara d’Urso, Caterina del Federico, RobinMontano, Bertold Bär-Bouyssière, Andrew Charlton, Charles Stotler, Karmen Lutman, Rebekah Tanti-Dougall, Francisca Ramón Fernández. Cristina Lull Noguera, Sarah Prager, Chiara Tincani, João Vidal, Zoltán Bartucz, Péter Staviczky, Silvia Feliu, Michael Wukoschitz, Gabriela Roca, Héctor Morales, Ignacio Curbelo, Claudia Madrid Martínez, Francisco Muñoz Ruz, Esteban Szmulewicz Ramírez, Julio Facal, Santiago Aramburu, Gonzalo Casanova Ferro, Flavia Andrea Medina, Carlos Eduardo Armas Morales, Sandra Sofía Arcos Valcárcel, Carlos Mario Molina Betancur, Diego R. Gonzalez, Diego A. Benítez, Ana Elizabeth Villalta Vizcarra, Edgardo Marcelo Lovera Riquelme, Enrique Mota Flores, Raúl Pérez Guerra, María Matilde Ceballos, Antonia Paniza Fullana. ISBN: 978-989-90660-3-8 All Rights Reserved. No part of this book may be reproduced or utilised in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without permission in writing from the publisher. A written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. This work is published for general guidance only and is not intended as a substitute for professional advice. While every precaution has been taken in the preparation of the text, the publishers and authors can accept no responsibility for the consequences of any errors, however caused. This edition was published in 2022 by ESHTE, alongside other universities and institutions. ESHTE – Estoril Higher Institute for Tourism and Hotel Studies Av. Condes de Barcelona, n.º 808 2769‑510 Estoril Portugal http://tourismlaw.pt/ English and Spanish review: Gonçalo Vagos Diniz Structural revision: Tomás Torres Typeset by ESHTE Printed by VASP Dep. legal n.º 490140/21

Contents Raúl Filipe ESHTE President 27 José Manuel Alho Member of the Board of Directors, INATEL Foundation 29 Ricardo Rivero Ortega Rector of the University of Salamanca 31 Matteo Colleoni Deputy Rector for Sustainability of the University of Milan-Bicocca 33 Zoltán Bartucz and Péter Staviczky The Level Playing Field in Crisis Mode: State Aid Policy in the COVID-19 Pandemic with a Special Focus on the Tourism Sector 35 Abstract; 1. Introduction; 2. The Basics of European State Aid Law; 2.1. The Principles of State Aid Control; 2.2. What Is and What Is Not State Aid?; 2.3. When Is State Aid Compatible with the Internal Market?; 3. The Commission’s First Reactions to the COVID-19 Outbreak from a State Aid Aspect; 4. The TFEU’s Core Provisions as Legal Base to Handle the Impacts of the Pandemic; 4.1. Article 107(2)(b); 4.2. Article 107(3)(b); 5. Adapting State Aid Rules to the Crisis: Creation and Evolution of the Temporary Framework;

10 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY 6. Aid Categories Available for Tourism and Examples of Aid Measures in the Tourism and Related Sectors; 6.1. Aid Under Article 107(3)(b) TFEU: Aid Categories of the Temporary Framework; 6.1.1. Limited amounts of aid; 6.1.2. Aid in the form of guarantees on loans; 6.1.3. Aid in the form of subsidised interest rates for loans; 6.1.4. Aid in the form of tax deferrals; 6.1.5. Aid in the form of wage subsidies; 6.1.6. Recapitalisation aid; 6.1.7. Aid for uncovered fixed costs; 6.2. Aid Approved Directly under Article 107(3)(b) TFEU; 6.3. Aid Approved under Article 107(3)(c) TFEU; 6.4. Aid approved under Article 107(2)(b) TFEU; 6.5. The First Judgments Related to COVID-19 Measures Compatible with the Internal Market; 7. Preliminary Conclusions. Michael Wukoschitz Tour Organisers and Suppliers: Partners or Opponents in the Crisis? 79 1. Introduction; 2. Termination of the Package Travel Contract; 2.1. Termination by the traveller; 2.2. Termination by the organiser; 2.3. Consequences of termination; 3. The IH&RA/UFTAA Code of Practice; 4. The Legal Doctrine of “Frustration of Purpose” or “Discontinuation of the Basis of the Transaction”; 4.1. Austria; 4.2. Germany; 4.3. United Kingdom; 4.4. Spain; 5. Application of the Doctrine of “Frustration of Purpose” or “Discontinuation of the Basis of the Transaction” in Various Case Scenarios related to the COVID-19 Pandemic; 5.1. Destination affected by a high infection rate and/or a lockdown of public life;

CONTENTS 11 5.2. Carriage of tourists affected because of a travel ban; 5.3. Carriage of tourists affected by a flight ban or (expected) flight restrictions; 5.4. Other essential services affected; 6. Conclusions. Andrew Charlton and Charles Stotler Never Let a Crisis Go To Waste: The Future for Commercial Aviation 91 1. Current Picture for Aviation Industry: Effects of COVID-19 Crisis; 2. Legal Foundations of Aviation; 3. Back to COVID-19: Outlook and the Four Possible Scenarios; 3.1. Scenario 1: Business as usual; 3.2. Scenario 2: Chicago/Open Skies, with caveats; 3.3. Scenario 3: Return to Chicago/Bermuda; 3.4. Scenario 4: A new beginning; 4. Conclusions: Better Angels of Our Nature. Bertold Bär-Bouyssière The Impact of COVID-19 on Competition Law and Policy in the Tourism Sector 101 I. Introduction; II. The Old World: Pre-COVID-19; II.1. Methodology; II.2. The Pillars of Competition Law; II.2.1. Antitrust; II.2.2. Mergers; II.2.3. State Aid; III. The New World: Post COVID-19; III.1. The Competitive Environment; III.2. The Role of Competition Law and Policy; III.2.1. State Aid; III.2.2. Mergers; II.2.3. Antitrust; IV. Conclusion.

12 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY Karmen Lutman Hotel Cancellations and Consumer Rights in the Time of Coronavirus 113 1. Introduction; 2. Epidemic and Intervention Measures in Slovenia; 3. Air Transport and Passengers Rights; 4. Hotel Booking: Non-Refundable Reservations and Consumers Rights. João Almeida Vidal The Legal Impacts of COVID-19 Pandemic in the Use of Airport Slots 121 Abstract; 1. Context; 2. The 80/20 Rule; 3. Possible Reactions to Protect Airline Companies; 3.1. The legislative approach; 3.2. The contractual approach; 4. Conclusions; References. Tatjana Josipović The Legal Impact of the COVID-19 Crisis on Tourism and the Hospitality Industry in Croatia 127 1. The Role of Tourism and the Hospitality Industry in the Croatian Economy; 2. Recent Developments in Tourism Caused by the COVID-19 Crisis; 3. Temporary Measures in Economy; 3.1. General; 3.2. Temporary Measures in the Tourist Sector; 4. Amendments to the Tourism Services Act (Art. 38a); 4.1. Special Circumstances Caused by COVID-19; 4.2. Traveller’s Right to Terminate the Package Because Special Circumstances Caused by COVID-19; 4.3. Vouchers for Non-Performed Package Travel Arrangements; 4.4. Possible Problems in the Realisation of the New Traveller’s Right to Terminate the Package; 5. Final Remarks.

CONTENTS 13 Klára Dvořáková The Czech Fight over Vouchers 139 I. Introduction; II. What Has Been the Czech Reaction to COVID-19?; III. What Do the Limitations Mean for Czech Tour Operators?; III.1. What is a clear situation?; III.2. What is a controversial situation?; III.3. What is a combination of a clear and controversial situation?; III.4. Voucher as a type of renegotiation of the package travel contract; IV. Czech Lex Voucher; V. Conclusions: A Voucher World. Evanthia Kardoulia The Impact of the Coronavirus on the Air Transport and Tourism Sectors under the European and Greek Legal Frameworks 145 I. Introduction; II. Air Transport; II.1. EU Legal Framework Regarding Passengers’ Rights in Case of Flights Cancellations; II.2. Current Greek Legal Framework Regarding Passengers’ Rights in Case of Flight Cancellations; III. Package Travel; III.1. EU Legal Framework Regarding Travellers’ Rights in Case of Termination of the Package Travel Contract; III.2. Current Greek Legal Framework Regarding Travellers’ Rights in Case of Termination of the Package Travel Contract; IV. Conclusion. Alessandra Corrado COVID-19 and Air Transport: Italian Legislative Provisions 159 1. Overview of the Measures to Minimise the Spread of the Contagion Adopted by Italian Government; 2. Air Transport Contracts and the Italian Provisions; 2.1 The voucher as a means of reimbursement; 3. EU Commission Guidelines; 3.1. The amendment contained in paragraph 4, Art. 88bis: Possible infringement of Regulation No. 261/2004.

14 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY Chiara Tincani The COVID-19 Epidemic and the Impact on Tourism Contracts According to Italian Law 171 1. The Italian Strategy to Contain the Epidemic; 2. EU and Italian Regulations on Tourist Packages; 3. Transport Contracts; 4. Service Providers Other than the Carrier; 5. The Travel Intermediary. Francesco Morandi The Use of Vouchers as an Alternative to Cash Refund: The Italian Way to Deal with the Pandemic 181 1. Introduction; 2. Vouchers according to the Law-Decrees No. 9 and No. 18/2020; 3. The Effects on Hospitality, Transport and Package Travel Contracts; 4. The Package Travel Contracts after Law No. 27/2020; 5. The Commission Recommendation of 13 May 2020 on Travel Vouchers; 6. Final Remarks. Sara d’Urso Package Travel and Hotel Contracts: The Italian Intervention to Deal with the Impact of Coronavirus 193 Introduction; 1. The Legislative Context and General Principles of Law; 2. The Intervention of the Italian Government; 3. The Intervention of Italian Government in the Tourism Sector; 3.1. The voucher before and after amendments; 3.2. A further novelty in favour of tour operators; 3.3. The new paragraph 11 of Article 88bis; 3.4. The conflict with European discipline; 4. Potential Improvements and Conclusions. Marina Gunare and Alona Rogale-Homika Package Tour Cancellations and Consumer Rights: Temporary State Aid for the Tourism and Travel Sector in the Time of Coronavirus in Latvia 209 Abstract;

CONTENTS 15 1. The Coronavirus is Entering Baltic States; 2. A State of Emergency; 3. Tourism Industry in Latvia; 4. Temporary State Aid; 5. Conclusions. Rebekah Tanti-Dougall COVID-19 and the Rights of Organisers: The Maltese Perspective 217 1. The Legal Framework in Malta transposing the Package Travel Directive; 2. The situation in the EU brought about by COVID-19; 3. To what extent the Maltese law, transposing the Package Travel Directive, was amended in Malta to assist organisers during COVID-19?; 4. What other amendments could have been carried out in Maltese law to assist the organiser?; 5. What kind of vouchers should be offered to the traveller?; 6. Refunds versus Vouchers – the relationship between the organiser and the traveller and the organiser and a third party provider; 7. The Maltese Insolvency Fund Legal Framework: Protection of travellers versus the possibility of insolvency of organisers; 8. Conclusion. Inmaculada González Cabrera Collaborative Tourism Activities as a Response to the Crisis Generated in the Tourism Sector by the COVID-19 225 I. Introduction; II. Collaborative Tourism Activities as a Preliminary Issue; II.1. Transport and Accommodation as Basic Elements of Tourism; II.2. The Qualification of “Collaborative”; III. Accommodation Activities; III.1. Legal Nature; III.1.1. Business accommodation platforms (Airbnb, Homeaway, etc.); III.1.2. Hospitality consumption platforms (Couchsurfing, HomeExchange, etc.); III.2. The Legal Relationship Arising from the Transaction; IV. Transport Activities; IV.1. Uber as a Transport Company; IV.2. BlaBlaCar as an Intermediary of the Information Society Service;

16 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY IV.3. The Different Legal Relationship Generated Between Users on these Platforms; V. Other Complementary Tourism Services; VI. Final Remarks; VII. Bibliography; VIII. Other Resources. Francisca Ramón Fernández and Cristina Lull Noguera The Legal Impacts of COVID-19 in the Tourism Accommodation Establishments in Spain 255 Introduction; I. Measures Adopted in Spain in Response to COVID-19 Concerning Tourism; II. The Suspension of Opening to the Public of Tourist Accommodation Establishments; III. Declaration of Essential Services to a Series of Tourist Accommodation: Accommodation for Workers; IV Tourist Accommodation and Accommodation for People Especially Vulnerable; Conclusions; Bibliography. F. Javier Melgosa Arcos Coronavirus and Tourism in Spain: Analysis of the Legislative Provisions to Combat the Pandemic 273 Abstract; 1. Introduction; 2. The Legal Framework for Emergency Situations in Spain; 3. Sanitary and Socioeconomic Measures that Affect the Spanish Tourism Sector; 3.1. Cancellation of hotel and restaurant activities; 3.2. Declaration of essential services for specified tourist accommodations; 3.3. Enabling accommodation for sanitary use; 3.4. Help lines: expansion of the Thomas Cook financing line to serve all companies established in Spain included in certain economic sectors; 3.5. Support measures for consumers in package tours; 4. Health Guarantee Protocols and Certifications to Generate Security and Trust;

CONTENTS 17 5. Transition towards the “New Normal”; 6. Final Thoughts; 7. Bibliography. Silvia Feliu Package Travel Cancellations due to COVID-19: The Role of Travel Agencies from the Spanish Perspective 297 I. March 2020: Global Health Crisis and Tourism; II. The COVID-19 Crisis and Package Travel; III. Termination of the Package Travel Contract (Art. 12 Directive 2015/2302). IV. Urgent Measures Adopted in Spain against the Cancellations of Package Travel due to the Coronavirus: Royal Decree-Law 11/2020; V. Situation of Travel Agencies in March 2021. Sarah Prager COVID-19: The Impact on Travel Claims and Litigation in the UK 309 Abstract; 1. The Conduct of Proceedings in the English Courts; 1.1. The Voluntary Agreement; 1.2. The Amendment to the Civil Procedure Rules; 2. The Measures Taken to Keep the Courts Open; 3. Litigation against the Travel Industry; 3.1. Claims under the Package Travel and Linked Travel Arrangements Regulations 2018; 3.2. Claims in Negligence; 3.3. Claims under the Athens Convention; 4. Conclusion. António Osório What Effect Does the Coronavirus Pandemic Have on African Countries? An Overview on the Aviation, Tourism and Hospitality Sectors 323 1. What Effect Does the Coronavirus Pandemic Have on Global Aviation?; 2. What Effect Does the Coronavirus Pandemic Have on African Aviation?; 2.1. Disruption in African Aviation; 2.2. Why Will African Aviation Suffer?; 3. What Effect Does the Coronavirus Pandemic Have in Cape Verde?;

18 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY 3.1. In the Aviation Sector; 3.2. In the Tourism and Hospitality Sector. Ardyllis Alves Soares Brazilian Perspectives of the Impact of COVID-19 on Tourism Law: Supply Chain and Consumer Aspects 331 Introduction; 1. Recent Developments related to COVID-19 and Tourist Law in Brazil; 1.1. Provisional Measure No. 925/2020; 1.2. Legislative Decree No. 6/2020; 1.3. Consumer National Secretariat’s Technical Note No. 2/2020; 1.4. Provisional Measure No. 948/2020; 2. Reflections on Other Brazilian Regulations; 3. Conclusions. Marcelo Oliveira COVID-19 and Travel Agencies: Safeguard Measures Presented in Brazil 341 Abstract; 1. The Measures Adopted by the Brazilian Government that Most Impact the Travel and Tourism Sector; 2. Measures in Labour Relations; 3. Tax Measures; 4. Measures for Granting Credit; 5. Measures for Relations between Consumers and Suppliers; 6. Conclusion. Robin Montano The COVID-19 Epidemic and the Impact on Tourism and Tourism Contracts according to Trinidadian Law 349 1. Introduction; 2. The Law; 3. Public Health; 4. Going Forward; 5. Conclusion.

CONTENTS 19 Caterina del Federico Tourism, Data Protection and COVID-19 353 Introduction; 1. Why the need to focus on privacy?; 2. Smart Tourism Destinations; 3. The relevance of the General Data Protection Regulation; Conclusions. Carlos Torres The International Code for the Protection of Tourists 361 1. Introduction; 2. Definitions; 3. Principles of the Assistance to International Tourists in Emergency Situations; 4. Prevention, Information, Assistance and Repatriation. Ana Elizabeth Villalta Vizcarra El COVID-19 y sus Impactos en el Sector Turismo en América 369 1. Antecedentes; 2. El Impacto del COVID-19 en el Sector Turismo; 3. Conclusiones. Diego Augusto Benítez Herramientas del Derecho del Turismo Frente a la Pandemia: A 50 años de la Convención de Bruselas del Contrato de Viajes 373 I. ¿Nos hemos perdido el instrumento jurídico turístico más completo que tuvo el sector? ¿Bastará con el Código Internacional para la Protección de los Turistas (ICPT)?; II. ¿Qué herramientas puede dar el derecho del turismo?. Diego R. González Los Impactos del COVID-19 en el Servicio Aeroportuario: Preguntas y Desafíos para el Ecosistema de la Aviación Civil 379 1. El Coronavirus Viaja en Avión… y Usa los Aeropuertos; 2. Génesis e Impacto de la Pandemia COVID-19 en la Aviación Civil; 3. Impacto en los Aeropuertos: Tráfico, Ingresos y Costos; 4. El Impacto Jurídico: Fuerza Mayor;

20 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY 5. La Aviación Civil como Ecosistema; 6. La “Nueva Normalidad” Aeroportuaria: Salud Pública y Vigilancia, Big Data e Inteligencia Artificial; 7. Reflexiones Finales. Gonzalo Casanova Ferro Turismo y Coronavirus: Respuestas Locales a un Problema Global 399 1. Introducción; 2. ¿Cuáles han sido las Respuestas Político-Jurídicas?; 3. ¿Cuáles han sido las Respuestas del Sector Turístico?; 3.1. La reacción del Ministerio de Turismo y Deportes; 3.2. La reacción del sector privado; 4. A Modo de Conclusión. Flavia Andrea Medina Contractos Turísticos Electrónicos y COVID-19: Problemas y Soluciones desde el Derecho Internacional Privado Argentino 407 Introducción; 1. Los Contratos Turísticos y el Coronavirus; 2. Diferentes Contratos, Diferentes Reglas; 2.1. La jurisdicción internacional, ¿dónde reclamar?; 2.2. El derecho aplicable, ¿en qué fundo el reclamo?; 3. Las Diferentes Respuestas frente al Coronavirus: ¿Problemas Nuevos o Problemas que Salieron del Closet?; 3.1. Las plataformas; 3.2. Las contrataciones directas por la web; 3.3. Las agencias online; 4. El Derecho Argentino y la Fuerza Mayor; 5. Entonces, ¿Qué Hacemos?. Sandra Sofía Arcos Valcárcel Contratos Turísticos y COVID-19: Principios Generales para la Adecuada Renegociación de los Contratos de Prestaciones Turísticas – Una Mirada Superadora 421 I. La Normativa General de Emergencia que Restringió la Actividad Turística. Normativa Específica de Emergencia del Ministerio de Turismo de la Nación Argentina;

CONTENTS 21 II. La Imposibilidad de Cumplimiento de las Prestaciones a causa de la Declaración de Pandemia: el Derecho del Consumidor; III. Renegociación de los Contratos Turísticos: Pautas de Interpretación de los Contratos y Principios Generales del Derecho Argentino. Santiago Aramburu Normativas Vinculadas a la Actividad Turística y COVID-19 en la República Argentina 437 1. Resumen; 2. Normas; 3. Conclusión. Edgardo Marcelo Lovera Riquelme Proceso de Vacunación en Chile: Reflexiones sobre el Turismo de Salud y COVID-19 445 Resumen; Abstract; 1. Chile, Viajes para la Vacunación Contra el COVID; 2. Turismo de Salud; 2.1. Turismo de Salud en Chile; 3. Es Posible el Turismo para la Vacunación Contra el COVID-19 en Chile; 4. Palabras Finales; Bibliografía. Francisco Muñoz Ruz and Esteban Szmulewicz Ramírez COVID-19 y sus Impactos en Chile: Respuestas desde las Políticas Públicas del Turismo 455 Introducción; 1. Institucionalidad del Turismo en Chile; 1.1. Síntesis Esquematizada de los Distintos Órganos con Competencias en Turismo; 1.2. El Mercado del Turismo en Chile; 2. COVID-19 en Chile: Impactos y Primeras Medidas; 3. Medidas Adoptadas en Razón de la Crisis; 3.1. Medidas Legislativas; 3.1.1. Ley de Teletrabajo (Ley Nº 21.220); 3.1.2. Ley de Protección al Empleo (Ley Nº 21.227);

22 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY 3.1.3. Ampliación del Fondo de Garantía para Pequeños Empresarios (FOGAPE); 3.2. Medidas Cambiarias; 3.3. Medidas Administrativas; 3.3.1. Medidas Tributarias; Conclusiones; Referencias Bibliográficas. Carlos Mario Molina Betancur El Turismo en Tiempos de COVID-19 477 Gabriela Roca and Héctor Morales 481 Los Impactos de COVID-19 en el Sector Turístico de Guatemala I. Generalidades del Turismo en Guatemala; II. COVID-19 y los Planes; II.1. ¿Qué Medidas Económicas Ha Tomado el Gobierno en Relación al Sector Turístico?; II.2. ¿Qué Medidas Propone el Sector Privado?; II.2.1. Plan de Emergencia y reactivación del sector turístico en Guatemala; II.3. ¿Qué Medidas Propone el Mundo?. Ventura Enrique Mota Flores Instrumentos Jurídicos sobre la Gestión de la Pandemia COVID-19 en México 487 I. Introducción; II. Consideraciones Generales; III. Turismo en México; III.1. Declaratoria de COVID-19 en México; IV. Reglas de los Contratos; V. Conclusiones. Carlos Eduardo Armas Morales El Derecho a la Salud y los Derechos Económicos en Tiempos del COVID-19 y el Turismo Peruano 493 Resumen;

CONTENTS 23 Introducción; 1. El Derecho a la Salud y los Derechos Económicos en la Constitución y Jurisprudencia Constitucional Peruana; 2. El Derecho de la Salud y el COVID-19 y los Derechos Económicos (Industria Turística); 3. El Estado Después del COVID-19 y los Derechos Económicos (Industria Turística); Conclusiones; Bibliografía. Raúl Pérez Guerra and María Matilde Ceballos El Derecho del Turismo tras la Irrupción de la COVID-19: Hacia la Normalidad 507 I. Estado de la Cuestión: La Irrupción de la COVID-19; II. El Nuevo Orden Jurídico Planteado; II.1. El Derecho de Necesidad frente al Derecho Ordinario Común; III. El Nuevo Escenario del Derecho Administrativo del Turismo Español; III.1. La Hostelería: Alojamiento y Restauración; III.2. Los Contratos Turísticos: Transportes Turísticos y Derechos de los Pasajeros; III.3. La Contratación de Inmuebles para Uso Turístico: Locales de Negocio, de Arrendamiento de Industria y de Gestión Hotelera; IV. A Modo de Conclusión: Propuestas de Fututo en la Desescalada Responsable; V. Bibliografía. Antonia Paniza Fullana La Protección del Usuario de Servicios Turísticos y la Crisis Sanitaria Causada por el COVID-19 545 I. Planteamiento; II. La Adecuación de la Normativa Española a la Situación de Crisis Sanitaria Mundial: Artículo 36 del Real Decreto-Ley 11/2020, de 31 de marzo y los Contratos Turísticos; II.1. Los Bonos de Viaje; II.2. Los Bonos Frente al Reembolso del Precio Pagado por los Servicios No Prestados;

24 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY II.2.1. Artículo 36.1 del Real Decreto-Ley 11/2020: Los Servicios Sueltos. II.2.2. Artículo 36.4 del Real Decreto-Ley 11/2020: Los Viajes Combinados; II.3. Hacia las Circunstancias (Im)previsibles e (In)evitables después del Estado de Alarma; III. Las Resoluciones de los Tribunales en Relación con la Resolución de Contratos durante la Pandemia; IV. Reflexiones Finales; V. Bibliografía. Ignacio Curbelo COVID-19 en Uruguay visto desde la Administración Pública y Reflexiones de Derecho Penal 571 Introducción; I. La Situación Actual del COVID-19 en Uruguay; I.1. Situación Sanitaria; II. Datos e Importancia del Turismo para Uruguay; III. El Derecho Penal en Tiempo de Coronavirus. Julio Facal La Responsabilidad en la Contratación Turística ante la Crisis Sanitaria Mundial por COVID-19: Aspectos Relativos a la Situación en Uruguay 581 I. Turismo y Salud Antes del COVID-19; II. El Impacto del COVID-19 en el Turismo; III. Medidas Tomadas Ante la Situación de Emergencia Sanitaria; IV. Aspectos Legales del Impacto del COVID-19 en la Contratación Turística; V. Contratos Turísticos y COVID-19: La Responsabilidad de Prestadores y de las Agencias de Viaje Frente al Turista; VI. La Situación de las Agencias de Viaje Frente a los Turistas; VII. Soluciones Encontradas en el Derecho Comparado para Evitar los Reclamos de Turistas y la Crisis del Sector – Aspectos Controversiales; VIII. El Nuevo Escenario Pos COVID-19.

CONTENTS 25 Claudia Madrid Martínez Respuestas Locales a un Problema Global: El Derecho del Turismo en Venezuela Frente al COVID-19 597 I. El Panorama Global y la Respuesta Local; II. Características de las Relaciones de Turismo y COVID-19; III. La Causa Extraña No Imputable como Posible Salida; III.1. Generalidades; III.2. Las Relaciones de Turismo Durante la Vigencia de las Medidas; III.3. Las Relaciones de Turismo Después de la Vigencia de las Medidas; IV. Lo que Podemos Esperar.

ear Colleagues and Partners of the International Web Conference on The Legal Impacts of the COVID-19 in the Travel, Tourism and Hospitality Industry: As President of Escola Superior de Hotelaria e Turismo do Estoril/Estoril Higher Institute for Tourism and Hotel Studies (ESHTE), I am very honored for the contribution of our institution to this significant Conference. First of all, I want to thank our colleague Carlos Torres and all the specialists who participated in this very important work. Portugal is a country where Tourism plays a very important role, our natural and human made attractions and the way Portuguese people receive tourists, make Portugal a very interesting tourism destination. Unfortunately, is this pandemic situation, all the activities generally connected with tourism such as travelling, meeting new people and participating in a world that is not the one where you generally live, were considered enemies of the fight oh this pandemic. There was indeed a time when you could say that the aim of hospitals and public health was the opposite of the tourist activity: in tourism we need rooms and beds occupied, for hospitals it is the opposite; in tourism we need people to travel and meet other people, it was exactly what national health boards were telling us to do, it looked that, in order to fight this pandemic, we had to put tourism on hold. The consequences of COVID-19 in the Tourism activity in Portugal were huge. Many hotels and restaurants closed, airplanes were on the ground and millions of people were not working. When I am writing this text (September, 2021) many hotels are still closed, mostly the ones in the cities, and regions by the sea had a fair trade during the summer, mainly because of domestic tourism. Portuguese people have a strong tradition of trusting in vaccination, after the second week of September, Portugal was considered the country with the highest rate of complete vaccination. We hope that this achievement will contribute to the recovery of tourism in our country and that public entities will be able to promote Portugal as a safe country to go on holidays. 2019 was a great year for tourism in Portugal, if we look at data, we realize that though D

tourism is generally one of the primary activities to suffer in crisis situations, it is usually the first to recover. We know now, that 2021 will be a better year for tourism than 2020 and we hope that in a near future we will beat the numbers of 2019, after all we are talking about a resilient activity with very hard working and capable actors. This work, with the contribution of so many specialists in tourism law, will certainly also be a useful input to all the ones who care and work with tourism. Thank you very much. RAÚL DAS ROUCAS FILIPE ESHTE President

om dia a todos! Greetings to all and welcome to the result of another ESHTE/INATEL conference, this time, in a slightly different format than usual. On behalf of the INATEL Foundation, I would like to express our thanks to ESHTE for this initiative and to all the speakers who, once again, demonstrated their willingness to share knowledge and reflection on such an important topic for the hospitality and tourism sector. It is known that tourism is one of the sectors most affected by the COVID-19 crisis. Furthermore, COVID-19 will affect all countries in different ways and with different degrees. The ability of countries to respond to and recover from this unprecedented crisis will also vary significantly. To reflect on how to manage this crisis in the tourism sector and find methodologies to mitigate its impacts, it is essential to define strategies that will accelerate the recovery. Cancellations, refunds, insurance, demotivation, uncertainty, lack of confidence and closure are currently common situations for most hospitality and tourism organisations. In Portugal, it is estimated that, due to COVID-19, a 25% reduction in tourism activity, both for non-resident visitors and domestic tourism, will lead to a 2.9% reduction in annual GDP. The COVID-19 pandemic will thus have significant and transversal impacts on the Portuguese economy, especially in the tourism sector, which will be one of the most affected. The INATEL Foundation has been heavily affected by the context of the pandemic, implying the suspension of all its commercial activity, both in terms of travel programs and in terms of the operation of its 17 hotels. Nevertheless, as a social economy entity, the INATEL Foundation has been playing an active role in this battle, either by making its network of hotels available for the reception of non-infected people who need a temporary residence or by creating a network of volunteers from their workers, for local support to people and organisations in need. B

Stimulating the recovery and ensuring jobs implies a capacity for resilience and creativity to respond to different habits and motivations that will certainly characterise our tourists. Concepts such as sustainability and the circular economy are increasingly valued. The demand for sustainable destinations or with evident sustainability policies will be increasing; and tourists will be more demanding regarding environmental certification in hotels and the overall tourism sector. Another requirement will be security, namely sanitary. We have to feel safe again on trips and leisure trips. Destinations must demonstrate that they are knowledgeable and well equipped to deal with this virus. Following this line, INATEL Foundation will continue to work, preparing for tomorrow, always attentive and aligned with the national and international strategies to combat the pandemic. Only with a shared responsibility between tourists, hotel and tourism organisations and governments around the world, we will be able to overcome this pandemic. I am sure that this conference and book will be an excellent contribution to this purpose. Thank you. JOSÉ MANUEL ALHO Member of the Board of Directors INATEL Foundation

ear partners of the International Web Conference on The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry: As Rector of the University of Salamanca, it is a great honour to be able to address all of you, jurists from Europe and Latin America. Two continents united by a common problem: the COVID-19. I must congratulate the organiser, our Portuguese colleague, Dr Carlos Torres, and all the legal experts who have analysed the legal consequences of this virus, especially in the travel and tourism industry. This is, without a doubt, a pioneering initiative and I am particularly glad to announce that the University of Salamanca has participated in it. Our university was founded in 1218, placing it among the four oldest in Europe. It has a clearly Latin American vocation evidenced by the variety of programs that our professors teach at every faculty on this content, and the large number of students who come to graduate or to get a doctorate degree from our university. I am also grateful for the high online participation as an alternative to the meetings at this difficult moment. This crisis has obliged to all of the universities in the world to find different options to give the lessons, and the University of Salamanca has implemented many measures of virtual teaching and professors are facing the problem with responsibility. If there is a sector which has especially been hit by this worldwide pandemic, it is the tourism sector. It is a hallmark for our country with almost 84 million of tourists in 2019, but I have to say that in the recent decades it has increased in every country in the world; this sector has become a real engine of the economic, social and cultural development. I am sure it was not a coincidence that the first decision taken by a Contentious Administrative Court about confinement was the No. 1 Court of Santa Cruz de Tenerife (27 February 2020), that ratified the sanitary measures taken by the “Health Service”, which quarantined the guests of a Hotel after a European tourist was positive in COVID-19. D

However, in difficult moments, this sector has always assumed its responsibility as an integral part of society and is also aware that social welfare must be its priority. Now, it is time to work together to combat the virus and to overcome this crisis. As you can appreciate, the University of Salamanca is committed to society: the engineers are focused on the manufacture of sanitary equipment such as protective screens and respirators (they provided more than 1000 screens to health centres in 72 hours and plan to reach 80,000), the Faculty of Pharmacy produces an average of 70 litres of hydroalcoholic gel per day to supply both hospitals and health centres, and the Faculty of Psychology provides psychological care to serve the world community. Finally, as we are in a tourism forum, I would also like to inform you that the “Colegio Arzobispo Fonseca”, a hotel owned by the University where we have hosted our most illustrious guests, has been given to the Public Health Service, and it started operating, more than a month ago, as a hospital to attend COVID-19 patients who are in the last phase of recovery. I want to conclude by giving an optimistic message. As set out by the World Tourism Organization (UNWTO), the international cooperation of the tourism sector, as well as its solidarity would be very important for helping minimise the spread and impact of new coronavirus. Once the pandemic is over, tourism activity will be absolutely necessary for the recovery of the economy and employment all over the world. Moreover, I hope that this analysis made by so many jurists specialised in tourism law could be useful for companies, professionals and tourism administrations. Thank you very much. RICARDO RIVERO ORTEGA Rector of the University of Salamanca

ear partners of the International Web Conference on The Legal Impacts of the COVID-19 in the Travel, Tourism and Hospitality Industry: As Deputy Rector for Sustainability and President of the Degree Course in Tourism Sciences of the University of Milan-Bicocca, I am very honoured to contribute to this significant Conference. As you know, Italy is one of the countries most affected by the COVID-19 pandemic, in particular in its northern and central regions. Since the epidemic appeared in our country, 176,000 people have been infected and 24,000 people have died. Although at the beginning concentrated in the regions of northern Italy, especially in Lombardy, the virus spread quickly throughout Italy. The problem is that Lombardy is the most industrialised region in Italy, which contributes to more than a fifth of the gross domestic product. Over the nine months before the crisis, the region’s exchange with China was over 13 billion, out of the total of 34 billion. The import alone is worth about 10 billion out of the 24 at the national level (41%) and exports 3 billion out of 9 (33%). The consequences of the crisis on the Italian economy will be very strong, although with a different intensity according to the various scenarios (basic and pessimistic). In both scenarios, hotels, travel agencies, tour operators, accommodations and air transport will record the worst performances. According to many sources, tourism, travel, airlines and retail will be the sectors most hit by the crisis on both liquidity and profitability. In 2020, the coronavirus emergency could burn 18 billion tourist spending, 9.2 billion for the decrease in incoming and 8.8 billion for the cancellation of holidays in Italy by Italian people. The drop in total consumption of goods and services would be a consequence of the fall of 29 million arrivals, which, in turn, would generate 143 million fewer presences, with a decrease of 22% and 34%, respectively, compared to 2019. According to a survey carried out by the Demoskopika Institute on 11 March, on a representative sample of over a thousand Italians, at least 14 million citizens would have already decided not to go on holiday in July and August. The incidence of the level of reduction of tourist spending is expected to be very D

high in Veneto, Lombardy, Tuscany and Lazio, some of the most touristic regions in Italy. The most important causes that will generate a decline in the total volumes of the Italian and foreign demand are expected to be the following: vacation amount reduction, long haul travel risk increase, spending power reduction, booking window decrease, weakening of the brokerage system, information on the resurgence of the epidemic and contraction of the offer. With attention to the hotel sector, overall, a drop in demand is estimated between 45 and 55%, depending on the evolution and duration of the lockdown measures. The estimates reported for the scenarios aforementioned would bring the Italian hotel system up to the level of the late 1970s. It is estimated a total loss of presences included between 126 million and 153 million compared to the average hotel volumes expected for 2020 on base 2018-2019. To conclude, the crisis caused by the coronavirus will certainly have very serious negative consequences on the Italian economy and tourism. To face it, it will be necessary to design suitable scenarios to predict the effects in the different market and tourism sectors. However, as we have seen throughout the outbreak, not all countries have been affected in the same way. Those that have been most efficient in predicting the outbreak and its containment are the same ones that have been able to better cope with the crisis. We are in the phase in which accurate forecasts must be proposed in order to activate all resources, especially local ones, so as to contain the negative effects of the crisis. Thank you very much MATTEO COLLEONI Deputy Rector for Sustainability of the University of Milan-Bicocca

The Level Playing Field in Crisis Mode: State Aid Policy in the COVID-19 Pandemic with a Special Focus on the Tourism Sector1 Zoltán Bartucz2 Péter Staviczky3 Abstract; 1. Introduction; 2. The Basics of European State Aid Law; 2.1. The Principles of State Aid Control; 2.2. What Is and What Is Not State Aid?; 2.3. When Is State Aid Compatible with the Internal Market?; 3. The Commission’s First Reactions to the COVID-19 Outbreak from a State Aid Aspect; 4. The TFEU’s Core Provisions as Legal Base to Handle the Impacts of the Pandemic; 4.1. Article 107(2)(b); 4.2. Article 107(3)(b); 5. Adapting State Aid Rules to the Crisis: Creation and Evolution of the Temporary Framework; 6. Aid Categories Available for Tourism and Examples of Aid Measures in the Tourism and Related Sectors; 6.1. Aid Under Article 107(3)(b) TFEU: Aid Categories of the Temporary Framework; 6.1.1. Limited amounts of aid; 6.1.2. Aid in the form of guarantees on loans; 6.1.3. Aid in the form of subsidised interest rates for loans; 6.1.4. Aid in the form of tax deferrals; 6.1.5. Aid in the form of wage subsidies; 6.1.6. Recapitalisation aid; 6.1.7. Aid for uncovered fixed costs; 6.2. Aid Approved Directly under Article 107(3)(b) TFEU; 6.3. Aid Approved under Article 107(3)(c) TFEU; 6.4. Aid approved under Article 107(2)(b) TFEU; 6.5. The First Judgments Related to COVID-19 Measures Compatible with the Internal Market; 7. Preliminary Conclusions. 1 This article does not reflect the official opinion of the Hungarian Government. The responsibility for the information and views set out in this article lies entirely with the authors. 2 Zoltán Bartucz is a head of unit at the Hungarian State Aid Monitoring Office. 3 Péter Staviczky is the State aid attaché at the Permanent Representation of Hungary to the European Union.

36 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY ABSTRACT This article gives a broad overview of State aid policy efforts in 2020 and 2021 to enable government help, among others, for the tourism sector to overcome the impact of the COVID-19 pandemic. The article introduces the reader to the European Union’s State aid legal architecture, including the notion of State aid, the notification obligation, the legal options used to repair the damages caused by the pandemic and remedy the economic crisis it caused. It will describe how the provisional State aid rules adopted by the European Commission in March 2019 allow the Member States to grant temporarily public support for undertakings even for their operating costs, just to ensure their survival. It also analyses the different aid granting options of the European Commission’s Temporary Framework and presents how the Member States use them to help undertakings active in the tourism and related sectors. Moreover, the article summarises the first judgments of the European Union’s General Court as regards the Commission’s decisions allowing to grant State aid for airlines hit by the pandemic. Lastly, the article draws some preliminary conclusions about the handling of the COVID-19 crisis, via State aid rules, and the flexibility of such rules. 1. INTRODUCTION The outbreak of the COVID-19 pandemic and the following curtailing measures have possibly impacted the travel, tourism and related sectors the most. The world as we knew it until 2019 has fundamentally changed. Undertakings providing services in these sectors lost their clients from one day to the other without having any possibility to get prepared or to reorganise their core functions. Travel bans, the closures of restaurants, hotels and borders resulted in unfamiliar images of emptiness when someone looked around at the most touristic sites of Europe. As the complete disappearance of customers could be easily traced back to public measures necessary to prevent the further spread of the virus, Member States realised the need to compensate these affected businesses and give them temporary financial aid to get over this dark period, which no one knows how long would last. However, European State aid rules set tight controls as regards the spending possibilities of the Member States towards economic actors. As a rule, State aid

THE LEVEL PLAYING FIELD IN CRISIS MODE 37 law does not allow Member States to finance the simple operating costs of the undertakings (e.g. salaries, rental fees, taxes, etc.)4, or to give funding to undertakings not viable under market conditions without the help of the state5. The European Commission solved this conundrum by adopting temporary State aid rules for 2020 to tackle the economic and some social impacts of the pandemic, which were amended several times and recently prolonged until the end of 20216. Member States immediately started to use this temporary tool and notified to the Commission hundreds of aid schemes and some individual measures as well7. Nonetheless, the adoption of a temporary set of State aid rules was not the only policy reaction to the outbreak of the pandemic. The European Commission also changed legislation in other policy areas to provide bigger flexibility for Member States. Just to name a few8, it rearranged and mobilised the rules on European Structural and Investment Funds to allow the use of funds still available for the 2014-2020 period for “anti-virus” purposes9. In addition, the budgetary rules of the European Union, requiring Member States to keep public debt and government deficit under certain thresholds or face legal consequences, were suspended10. In the meantime, the Commission proposed11 to make additional EU funds available beside the multiannual financial framework to put Europe back to the growth path, and meet the most important challenges it is facing. The proposal was adopted end last year after heavy political debates12. 4 With some exceptions, such as the provision of services of general economic interest, helping undertakings or citizens in remote areas, or the production of electricity from renewable energy resources. 5 With the strict exception of rescue and restructuring aid in line with the relevant guidelines and specific rules that apply to the financial sector since 2008. 6 Given that the rollout of vaccination is still slow, a further prolongation is not excluded. 7 The decisions already published, as well as the temporary rules, are available in https://ec.europa.eu/competition-policy/state-aid/coronavirus_en. 8 Given the scope of this article, only the most important proposals and changes in the domain of finances are mentioned. In addition, numerous other measures were taken, including the financing of research of vaccines, buying vaccines jointly for the EU Member States, etc. 9 Sources: https://ec.europa.eu/regional_policy/en/newsroom/news/2020/03/16-03-2020-cohesionpolicy-and-eu-solidarity-fund-contribute-to-the-coronavirus-response-investment-initiative; and https://ec.europa.eu/regional_policy/en/newsroom/news/2020/04/04-02-2020-coronavirus-responseinvestment-initiative-plus-new-actions-to-mobilise-essential-investments-and-resources (accessed on 10 March 2021). 10 Source: https://ec.europa.eu/info/sites/info/files/economy-finance/2_en_act_part1_v3adopted_text.pdf (accessed 10 March 2021) 11 Source: https://ec.europa.eu/info/business-economy-euro/recovery-coronavirus/recovery-andresilience-facility_en (accessed on 10 March 2021). 12 Source: https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=uriserv%3AOJ.L_.2021.057.01.0017.01.ENG&toc=OJ%3AL%3A2021%3A057 %3ATOC (accessed on 10 March 2021).

38 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY Last but not least, the Commission gave its interpretation13 on how accounting and valuation requirements can be interpreted in a flexible way to avoid that the pandemic’s negative impacts deteriorate banks’ capital immediately, before knowing whether the debtors would be able to pays their debt service in the longer run. This way one can prevent that the negative situation immediately spills over the banking sector, and results in the failure of financial intermediaries. Moreover, the European Central Bank, which already applied monetary stimulus measures in recent years on multiple occasions, launched a new temporary asset purchase programme to buy private and public sector securities to counter the serious risks to the monetary policy transmission mechanism, and to improve the outlook for the euro area posed by the outbreak and escalating diffusion of the coronavirus14. This budgetary and monetary flexibility coupled with the lenient temporary State aid rules allowed unprecedented spending by the Member States. On the basis of the budgetary numbers of the Recovery and Resilience Facility, it is clear that public spending will be likely be strong in the coming years, too. This article focuses on the State aid aspects of these regulatory and policy changes with a special outlook to the tourism sector, which has suffered an unforeseeable and massive collapse due to pandemic, and which indeed requires State aid. 2. THE BASICS OF EUROPEAN STATE AID LAW15 2.1. The Principles of State Aid Control The main provisions and principles of State aid law are laid down in Articles 107-109 of the Treaty on the Functioning of the European Union (TFEU). Although Article 107(1) TFEU defines a general ban on granting State aid, this ban is not absolute and, based on the empowerment of the TFEU, the 13 Commission Interpretative Communication on the application of the accounting and prudential frameworks to facilitate EU bank lending Supporting businesses and households amid COVID-19 (COM/2020/169 final). 14 Pandemic Emergency Purchase Programme (PEPP), available in https://www.ecb.europa.eu/mopo/i mplement/pepp/html/index.en.html (accessed on 10 March 2021). 15 For more, see Staviczky, Péter (2021). Tourism and State Aid. In Competition Law in Tourism (Carlos Torres, ed.). ESHTE-INATEL. Available in http://intranet.eshte.pt/competitionlawintourism/.

THE LEVEL PLAYING FIELD IN CRISIS MODE 39 European Commission16, the controlling body in the State aid field, can authorise the granting of aid for multiple reasons. Over the past few decades, the European Commission, as the centralised competition authority in the field of State aid, has developed a fairly complex system of exemptions and detailed compatibility conditions based on the relevant articles of the TFEU, which allows aid to be granted for different purposes17. As granting of State aid is generally prohibited, there is a procedure to authorise them exceptionally: Article 108 TFEU requires the Member States to notify all their aid plans to the Commission before implementing them (ex-ante notification obligation), and wait until the Commission authorises the given measure. This obviously can create headaches when a measure needs to be put in effect quickly or within a certain timeframe18. As the duration of State aid procedures is usually long19, and the decisional practice of the Commission has evolved, and the Commission proposed the application of solutions of granting compatible aid without notification. Since the early 2000s, the Commission, based on the empowerment of the Council20, started to introduce and apply the concept of block exemptions in the domain of State aid law. The State aid architecture still remains driven and controlled by the Commission, but in the last twenty years the Member States have granted a higher and higher portion of aid via these block exemptions21. The application of the block exemption regulations is easy: the Commission adopts the regulation with all the general and specific compatibility conditions for certain categories of State aid (e.g. regional, environmental, research and employment aid) and the Member States can grant the aid based on this regulation if they fully comply with all conditions and the aid is compatible with the internal market22, not having the 16 The TFEU also empowers the Council of the European Union to authorise aid granted by a Member State, but this happens quite rarely. 17 The list of these rules is available in https://ec.europa.eu/competition/state_aid/legislation/legislation. html (accessed on 10 March 2021). 18 State aid rules also apply to the disbursement of European Structural and Investment Funds, which have a seven-year programming period. The funds allocated to the Member States need to be spent during this period plus three years (the so-called N+3 rule). Funds not spent within this period will be reallocated to the EU general budget. 19 As a positive estimate, one can say that a non-complex case is decided within eight to ten months. However, when the Commission has to open formal investigation procedure under Article 108(2) TFEU, the procedure can last easily two or more years. 20 The current empowerment from the Council is to be found in Council Regulation (EU) 2015/1588 of 13 July 2015 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid (OJ L 248, 24.09.2015, pp. 1-8.). 21 Recent State aid Scoreboard shows that 96% of new measures are introduced are block-exempted. See: https://ec.europa.eu/competition/state_aid/scoreboard/index_en.html (accessed on 1 March 2021). 22 This strict approach has been constantly confirmed by the Court of Justice in the following recent judgments: C-493/14 Dilly’s Wellnesshotel GmbH v Finanzamt Linz (ECLI:EU:C:2016:577), C-349/17

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