118 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY that the traveller had already paid the money to the host, he is entitled to reimbursement (Art. 116(1) of the Slovenian Obligations Code). Problems related to a denial of reimbursement might arise particularly in the early stage of coronavirus outbreak, before the announcement of the pandemic, when hotels were open and tourism was still feasible. The host’s contract terms concerning “non-refundable” bookings usually exclude the possibility of reimbursement if a consumer withdraws from a contract, force majeure being no exception. Since the academic writing and case law concerning the fairness of contract terms within the meaning of Unfair Contract Terms Directive (Directive No. 93/13/EEC) are extensive and detailed, a comprehensive analysis of this issue would exceed the scope of this presentation. Nevertheless, I will briefly address a few points which suggest that a contract term that excludes the possibility for the traveller to get reimbursed, in case of an epidemic, might be considered unfair. A contractual term which has not been individually negotiated, is according to the Unfair Contract Terms Directive, regarded as unfair if, “contrary to the requirement of good faith causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer” (Art. 3(1) of the Unfair Contract Terms Directive). The analysis of fairness can be approached in at least two ways. A procedural approach is focused on the process of the conclusion of a contract4. A traveller is usually not in a position to be able to negotiate with the host about the cancellation policy. This is even more so if a contract is concluded via an online platform. Therefore, in most cases, he finds himself in a take-it-orleave-it position5. When assessing the fairness of a contract term, alternatives offered to the consumer, at the time of concluding a contract, should also be taken into consideration6. Thus, it is relevant whether a consumer had a chance to book a hotel with a cancellation policy, enabling him to get reimbursed in case of withdrawal due to force majeure. In contrast to the procedural approach, a substantive approach only looks at the terms of the contract7. It should be evaluated whether a contractual term “contrary to the requirement of good faith, causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the 4 P. Rott, Unfair Contract Terms in: C. Twigg-Flesner (ed.), Research handbook on EU consumer and contract law, 2016, p. 299. 5 Ibidem. 6 P. Nebbia, Unfair Contract Terms in: C. Twigg-Flesner (ed.), The Cambridge companion to European Union private law, 2010, p. 222. 7 P. Rott, Unfair Contract Terms in: C. Twigg-Flesner (ed.), Research handbook on EU consumer and contract law, 2016, p. 299.
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