88 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY 5.4. Other essential services affected According to Article 3(1) PTD, travel services under a package travel contract may include other tourist services, which are not intrinsically part of carriage, accommodation or car rental. If the combination apart from the “other tourist service” does not include more than one other type of travel services out of the afore mentioned categories it only constitutes a package if the “other tourist services” amounts for a significant proportion of the value of the combination, is advertised as an essential feature or otherwise represents such essential feature19. Even with regard to packages including more than one service type apart from the “other tourist service” it seems appropriate to limit the application of the frustration of purpose doctrine in cases when only the other tourist services is affected by COVID-19 related bans or restrictions to scenarios in which the other tourist service is an essential feature of the package. This can be a certain event (i.e. sports event or cultural event) or a certain additional service (i.e. language course or sports instructions). If we look at the accommodation reservation contract, the situation when an event does not take place or an additional service cannot be provided because of COVID-19 related restrictions is clearly reminiscent on the coronation cases as quoted above – under the precondition, however, that it was the mutual understanding of both parties that the accommodation serves the purpose of attending the event or making use of the particular additional service. If, for example, accommodation was booked for the purpose of attending the New Year’s Concert in Vienna and (because of COVID-19) the concert organisers are not allowed to receive any audience (as happened with the New Year’s Concert 2021) it seems to be a rather typical case of frustration of purpose or discontinuation of the basis of the transaction. The same applies to language holidays, when the purpose of the accommodation is the attendance of a language course that cannot take place because of COVID-19 restrictions. As a result, it seems rather likely that in these cases the organiser will be entitled to withdraw from the accommodation reservation contract and recover the money paid to the hotel operator. With regard to the contract of carriage, it seems far more difficult to refer to the doctrine of frustration of purpose or discontinuation of the basis of the transaction as air carriage contracts usually are not based on a mutual understanding of the parties that a certain event will take place or that a certain services will be available at the destination. Again, there may be exemptions when a flight was expressly chartered for one of these purposes. 19 Article 3(2) PTD.
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