FTI Touristik (Voyage a forfait aux îles Canaries) (Performance of a package travel contract - Lack of conformity in the performance of a travel service included in the package travel contract - Opinion) [2022] EUECJ C-396/21

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> FTI Touristik (Voyage a forfait aux îles Canaries) (Performance of a package travel contract - Lack of conformity in the performance of a travel service included in the package travel contract - Opinion) [2022] EUECJ C-396/21_O (15 September 2022) URL: http://www.bailii.org/eu/cases/EUECJ/2022/C39621_O.html Cite as: ECLI:EU:C:2022:688, [2022] EUECJ C-396/21_O, EU:C:2022:688

(Request for a preliminary ruling from the Landgericht München I (Regional Court, Munich I, Germany))

(Reference for a preliminary ruling – Article 267 TFEU – Directive 2015/2302 – Performance of a package travel contract – Lack of conformity in the performance of a travel service included in the package travel contract – Price reduction for any period during which there was lack of conformity – Unavoidable and extraordinary circumstances – Restrictions imposed at the travel destination due to the worldwide spread of an infectious disease – COVID‑19)

1. The COVID‑19 pandemic has been one of the most serious health emergencies in living memory, triggering a series of crises. To counter the spread of the pandemic, governments worldwide imposed restrictions the length and scope of which are unprecedented in times of peace. The challenges posed by the COVID‑19 pandemic are multiple and multidimensional. In certain circumstances, the pandemic has put the existing legal framework and its efficacy in governing the implications of such crises to the test.

2. The tourism sector was among the hardest hit by the pandemic. (2) The effects of the pandemic upon that sector persist to this day, while most experts do not expect a full recovery before 2024. (3) The present case concerns a very specific aspect of the impact of the pandemic, relating to the performance of package travel contracts governed by Directive 2015/2302 (4) and the exercise of rights for lack of conformity in the performance of such contracts. Despite their specificity, the present case and linked Case C‑407/21, UFC – Que choisir and CLCV, on which I deliver my Opinion today, have broader implications as they invite the Court, for the first time, to examine the consequences of the pandemic on contractual performance in relation to package travel.

3. Article 3 of Directive 2015/2302 contains, in points 12 and 13, the following definitions:

‘(12) “unavoidable and extraordinary circumstances” means a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken;

(13) “lack of conformity” means a failure to perform or improper performance of the travel services included in package;’

4. Article 14 of Directive 2015/2302, entitled ‘Price reduction and compensation for damages’, is worded as follows:

‘1. Member States shall ensure that the traveller is entitled to an appropriate price reduction for any period during which there was lack of conformity, unless the organiser proves that the lack of conformity is attributable to the traveller.

2. The traveller shall be entitled to receive appropriate compensation from the organiser for any damage which the traveller sustains as a result of any lack of conformity. Compensation shall be made without undue delay.

3. The traveller shall not be entitled to compensation for damages if the organiser proves that the lack of conformity is:

(b) attributable to a third party unconnected with the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable; or

5. Paragraph 651i of the Bürgerliches Gesetzbuch (Civil Code; ‘the BGB’) provides as follows:

‘(1) The tour operator must provide the traveller with the package tour free of travel defects.

(2) The package tour shall be free from defects if it has the agreed quality. In so far as the quality has not been agreed, the package tour shall be free of travel defects,

2. if it is suitable for normal use and has a quality which is customary for package tours of the same type and which the traveller may expect according to the nature of the package tour.

A travel defect shall also exist if the tour operator does not provide travel services or provides them with unreasonable delay.

(3) If the package tour is defective, the traveller may, if the conditions laid down in the following provisions are met and unless otherwise specified,

6. exercise the rights arising from a reduction in the travel price (Paragraph 651m) …

‘The travel price shall be reduced for the duration of the travel defect. In the case of a price reduction, the travel price is to be reduced in the proportion which the value of the package tour free of defects would, at the time when the contract was entered into, have had to the actual value. Where necessary, the price reduction is to be established by estimation.’

7. On 30 December 2019, the applicants in the main proceedings booked a 14-day holiday from Germany to the Canary Islands in Spain for the period from 13 March 2020 to 27 March 2020. The applicants departed on holiday as planned.

8. However, on 15 March 2020, the beaches were closed and a curfew came into effect in order to contain the COVID‑19 pandemic. In the hotel complex where the applicants were staying, access to the swimming pools and sunbeds was prohibited and the entertainment programme was discontinued. The applicants were permitted to leave their room only to eat or get a drink. On 18 March 2020, the applicants were informed by the authorities that they should at all times be ready to leave for the airport at an hour’s notice. After seven days, their trip ended and they returned to Germany.

9. The applicants brought an action before the Amtsgericht München (Local Court, Munich, Germany) against the defendant, FTI Touristik GmbH, claiming a price reduction of 70% of the pro rata travel price for seven days. In its judgment of 26 November 2020, that court dismissed the action on the ground that measures taken to protect the health of travellers due to a deadly virus do not qualify as a travel defect within the meaning of Paragraph 651i of the BGB.

10. The applicants brought an appeal before the referring court. The referring court observes that Paragraph 651i of the BGB provides for strict liability on the part of the organiser. It could, therefore, be argued that the organiser is liable for the restrictions imposed as health protection measures. However, the referring court notes that at the time of travel, similar restrictions were also imposed in Germany. It might therefore be possible to classify the measures adopted by the Spanish authorities not as exceptional circumstances in the travel destination but as normal measures taken throughout Europe in response to the pandemic.

11. Furthermore, the referring court raises doubts as to whether the restrictions imposed could be regarded as a ‘general life risk’ to be excluded from the scope of Article 14(1) of Directive 2015/2302. As that court explains, that doctrine has its origins in the case-law of the Bundesgerichtshof (Federal Court of Justice, Germany). According to that doctrine, the liability to pay compensation under travel contracts may be limited having regard to circumstances falling solely within the personal sphere of the traveller or in which risks that the traveller has to bear in his or her daily life materialise. The traveller should therefore assume the risks of an undertaking that fall under general life risks in cases where there is no breach of duty on the part of the organiser or otherwise the damage is not due to an event giving rise to the liability of the organiser. This would be the case, for example, if, outside of the use of travel services, the traveller has an accident, falls ill or becomes the victim of a crime at the holiday destination or is otherwise unable to use further travel services for personal reasons.

12. According to the referring court, it is conceivable that the possible outbreak of a pandemic was not considered at the time Directive 2015/2302 was adopted.

13. In those circumstances, the Landgericht München I (Regional Court, Munich, Germany) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Do restrictions imposed due to an infectious disease that is prevalent at the travel destination constitute a lack of conformity within the meaning of Article 14(1) of [Directive 2015/2302] even if, because of the worldwide spread of the infectious disease, such restrictions were imposed both in the traveller’s place of residence and in other countries?’

14. By its question, the referring court asks, essentially, whether Article 14(1) of Directive 2015/2302 must be interpreted as entitling the traveller to a price reduction for lack of conformity in the performance of the package travel contract in circumstances where the lack of conformity is due to restrictions imposed to prevent the spread of an infectious disease that is prevalent at the travel destination, where such restrictions are also imposed in the traveller’s place of residence and worldwide.

(a) The right to a price reduction in the context of the COVID‑19 pandemic

15. In accordance with settled case-law, the methods of interpretation used by the Court require account to be taken not only of the wording of the provision concerned, but also of its context and the objectives pursued by the act of which it forms part. (5) The origins of a provision of EU law may also provide information relevant to its interpretation. (6)

16. In the first place, according to the wording of Article 14(1) of Directive 2015/2302, the traveller is entitled ‘to an appropriate price reduction for any period during which there was lack of conformity, unless the organiser proves that the lack of conformity is attributable to the traveller’. It follows from that provision that the right to a price reduction is subject to one condition, namely the ‘lack of conformity’ and to one exception, namely where the lack of conformity is attributable to the traveller.

17. The concept of ‘lack of conformity’ is defined under Article 3, point 13, of Directive 2015/2302 as ‘a failure to perform or improper performance of the travel services included in a package’. That definition involves no element of fault or consideration of the circumstances to which the lack of conformity is due. Accordingly, the finding of a lack of conformity involves nothing more than a comparison between the services included in the package and those in fact provided. This is an objective finding. Therefore, the traveller’s right to receive a price reduction for lack of conformity may not depend on the cause of that lack of conformity, or, in the words of the Commission, its origin.

18. The exception established by Article 14(1) of Directive 2015/2302 to the right to a price reduction is straightforward: where the lack of conformity is attributable to the traveller. As an exception to the rule, it must be interpreted strictly. It may not, therefore, be extended to situations that are not explicitly provided for.

19. It follows that a lack of conformity that is attributable to any other person (the organiser, the supplier of services, or a third party unconnected to the package travel contract) or is due to unavoidable and extraordinary circumstances, within the meaning of Article 3, point 12, of Directive 2015/2302, will not exclude the traveller’s right to receive a price reduction. As the Finnish Government is right to point out in its written observations, for the purposes of assessing the lack of conformity, it is not relevant what a reasonable consumer would have expected in view of circumstances arising after the conclusion of the package travel contract. That assessment may depend only upon the services actually provided for in the travel contract.

20. Furthermore, that interpretation is confirmed by the context of Article 14(1) of Directive 2015/2302, which forms part of Chapter IV thereof containing rules on the performance of the package. In order to achieve the objective of harmonisation in respect of package contracts, that directive establishes a system of contractual liability for package travel organisers in respect of consumers who have concluded a contract with them for such travel. (7) That system of contractual liability is characterised by two important features. First, liability is strict and the grounds of exemption are exhaustively provided for. Secondly, it focuses liability on the organiser for any lack of conformity.

21. In particular, Article 13(1) of Directive 2015/2302 provides that Member States are to ensure that the organiser is responsible for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers. According to Article 13(3) of that directive, if any of the travel services are not performed in accordance with the package travel contract, the organiser is to remedy the lack of conformity, unless that is impossible or it entails disproportionate costs, taking into account the extent of the lack of conformity and the value of the travel services affected. In situations where the organiser does not remedy the lack of conformity, Article 14 of Directive 2015/2302 applies.

22. Article 14 of Directive 2015/2302 provides, in turn, for two distinct rights in the case of a lack of conformity: the right to a price reduction, in paragraph 1 thereof, and the right to receive appropriate compensation, in paragraphs 2 and 3 thereof. Those rights are subject to different conditions. On the one hand, as mentioned in point 16 above, the right to a price reduction arises where there is a lack of conformity and is excluded only if the organiser proves that the lack of conformity is attributable to the traveller. On the other hand, the right to compensation arises where damage is sustained as a result of any lack of conformity, and the only exceptions are those exhaustively set out in Article 14(3) of Directive 2015/2302. Specifically, the organiser is required to prove that the lack of conformity is attributable to the traveller or to a third party unconnected with the provision of the travel services included in the package travel contract, or is due to unavoidable and extraordinary circumstances.

23. It follows from the structure of Article 14 of Directive 2015/2302 that the exceptions to the right to compensation for damages are specific to that right and cannot be transposed to the right to receive a price reduction.

24. Lastly, that interpretation is borne out by the objective pursued by Directive 2015/2302, which consists, inter alia, pursuant to Article 1 thereof, in ensuring a high level of consumer protection. In view of that objective, the obligations arising from a package travel contract, the improper performance or non-performance of which renders the organiser liable, cannot be interpreted restrictively. (8) As the Commission essentially states in its written observations, (9) that interpretation is compatible with the objective of the system of contractual liability established by that directive which focuses liability on the organiser for all cases of non-performance or improper performance of the contract. In such cases, the consumer may seek redress against the organiser without having to investigate further in order to identify the person or the cause behind the lack of conformity, therefore enabling a high level of protection for consumers.

25. The dissociation of the right to a price reduction from the cause of the lack of conformity is supported by the origins of the provision in question. The Commission’s legislative proposal provided, in Article 12, for the same exceptions to the right to a price reduction and to the right to compensation for damages. (10) Specifically, the traveller was not to be entitled to a price reduction if the organiser would prove, among others, that the lack of conformity is due to unavoidable and extraordinary circumstances. However, in the course of the legislative process, the right to receive a price reduction was disassociated from the right to compensation. As the Commission points out, in essence, in its written observations, this corroborates the conclusion that the legislature intended to afford the traveller the right to a price reduction irrespective of considerations of fault or the cause of the lack of conformity, including in the event of unavoidable and extraordinary circumstances.

26. It follows from the wording, the context and the objective of Article 14(1) of Directive 2015/2302, as well as from its origin, that the traveller has the right to a price reduction where there is no fault on the part of the organiser and where the lack of conformity is due to unavoidable and extraordinary circumstances.

27. In the present case, it is established that the lack of conformity was attributable to the restrictions imposed by the administrative authorities in order to prevent the spread of the COVID‑19 pandemic in March 2020. Such measures constitute legal effects of the pandemic, which may be distinguished from the factual effects of the pandemic (involving, for instance, illness, isolation or death of key personnel). (11) Legal literature refers to the concept of fait du prince to designate regulatory measures or prohibitions which render contractual performance impossible and which exonerate the debtor from liability to pay damages. (12) The intervention of the public authorities in the contractual relationship generally constitutes force majeure. (13) As I explain in my Opinion in linked Case C‑407/21, UFC –Que choisir and CLCV, in the context of Directive 2015/2302, the concept of force majeure is covered by the concept of ‘unavoidable and extraordinary circumstances’, within the meaning of Article 3, point 12, of that directive. In the present case, the regulatory restrictions imposed in March 2020 in response to the pandemic should be regarded as falling under that concept. Indeed, such restrictions amount to a situation beyond the organiser’s control, the consequences of which could not have been avoided even if all reasonable measures had been taken. (14)

28. As mentioned, the occurrence of unavoidable and extraordinary circumstances does not exempt the organiser from his obligation to grant a price reduction. In order for the traveller to be entitled to receive a price reduction, the national court has to make a simple finding that the travel services included in the package were not performed or were improperly performed. Therefore, the fact that the lack of conformity is due to restrictions imposed in response to the pandemic, which amount to unavoidable and extraordinary circumstances, and the fact that similar measures were also imposed at the traveller’s place of residence do not affect the entitlement to a price reduction.

29. However, different arguments have been put forward against such an interpretation in the context of the COVID‑19 pandemic. First of all, the Czech Government has argued in its written submissions that Directive 2015/2302 is not applicable in such circumstances. The referring court also has doubts as to whether the pandemic falls within the protective scope of that directive. For the reasons I explain in my Opinion in linked Case C‑407/21, UFC – Que choisir and CLVC, delivered today, in the analysis of the second question, I do not agree with such a position. Indeed, as the law currently stands, the application of Directive 2015/2302 is not limited to instances of travel disruption of a certain scale or at local level.

30. With regard to the relevance of the ‘general life risk’ doctrine, as explained by the referring court, (15) I note that it does not concern the right to a price reduction but the liability of the organiser to pay compensation for damages. However, as I explained in point 22 above, under Directive 2015/2302 the right to a price reduction and the right to damages are subject to different conditions. Therefore, that doctrine is, in my view, irrelevant for the purposes of establishing the right to a price reduction. Moreover, in the present case, it is not a matter of the traveller being unable to use the services of the package travel contract because of a general risk to life which materialised for the traveller (for example, because he or she was infected with the virus). It is a matter of lack of performance of the services, which became legally impossible due to the adoption of governmental measures.

31. The Czech Government argued that observance of the legislation in force is an implied term of every contract. The restrictions imposed while the traveller was at the travel destination applied erga omnes and had to be respected by the organiser, the supplier of the services and the traveller alike. Therefore, according to the Czech Government, the organiser should not be liable for a defect which results from restrictions imposed by the State.

32. The parties are obliged indeed to observe the law in force in the country of destination. In the circumstances of the present case, this means that the organiser as well as the service provider were obliged to comply with the restrictions imposed by the Spanish Government. The consequence of the obligation to comply with the legal measures in force was that the performance of certain services entailing social contact became legally impossible. The government restrictions should then exempt the organiser from having to perform the contractual obligations which are affected by the government restrictions. Moreover, the organiser, in principle, should not be held liable for damages pursuant to Article 14(3)(c) of Directive 2015/2302. However, in view of the structure of Article 14 of that directive explained in point 20 et seq. of the present Opinion, the organiser is not exempt from his obligation to provide for an appropriate reduction in the price of the package. Therefore, I consider that the argument made by the Czech Government in relation to the implied term of the contract does not affect the traveller’s right to receive a price reduction.

33. The referring court put emphasis on the fact that the restrictions were imposed not only at the place of destination but also at the traveller’s place of residence. That would involve an assessment of the lack of performance in the light of the circumstances prevailing at the time when the lack of performance occurs. However, as made clear above, lack of performance is not assessed in the light of circumstances arising after the contract has been concluded. It is assessed having regard to the travel services included in the contract that can no longer be performed after the start of the package. A different issue, not raised in the present case, is whether there is lack of conformity when the parties conclude the contract after the restrictions are imposed.

34. It should also be stressed that the discharge by the organiser of his obligation to grant price reduction, even where the lack of conformity is due to unavoidable and extraordinary circumstances, is without prejudice to his right of redress pursuant to Article 22 of Directive 2015/2302. That article provides that Member States are to ensure that, in cases where an organiser grants a price reduction, it has the right to seek redress from any third parties which contributed to the event triggering the price reduction. That provision represents a ‘counterweight’ to the strict liability system set out in Article 14(1) of Directive 2015/2302. The organiser’s obligation to grant a price reduction may also be an element taken into account by Member States when deciding on the level of support to be provided to organisers in view of the pandemic, in accordance with the Temporary Framework for State aid measures. (16)

35. My interim conclusion is therefore that the traveller is entitled to a price reduction for lack of conformity in the performance of the package contract, pursuant to Article 14(1) of Directive 2015/2302, in circumstances where the lack of conformity is due to restrictions imposed in order to contain an infectious disease and where such restrictions were also imposed in the traveller’s place of residence and worldwide.

36. That said, even if the cause of the lack of performance does not affect the consumer’s right to a price reduction as such, it should affect, as I will explain in the following subsection, the amount of the reduction that the traveller is entitled to receive.

(b) Limitation of the right to a price reduction in the context of the COVID‑19 pandemic

37. The establishment of the organiser’s obligation to grant a price reduction under Article 14(1) of Directive 2015/2302 is not unlimited in scope. In the first place, that obligation can be assessed only in the light of the scope of the services included in the package, the non-performance or improper performance of which amounts to a lack of conformity. In turn, as the French Government points out in its written observations, the lack of conformity has an ‘intrinsic limitation’ as it may be assessed only in the light of the travel contract. Therefore, the organiser may not be held liable for the loss of enjoyment of services that fall outside the scope of the travel contract. In the present case, it appears that access to public beaches or shops, restaurants and entertainment venues outside the hotel complex was not covered by the travel contract. That is, however, a matter for the national court to determine.

38. In the second place, the traveller is entitled, according to Article 14(1) of Directive 2015/2302, to an ‘appropriate’ price reduction. The legislature did not specify a particular rate, lump sum or method of calculation. The amount of the ‘appropriate’ reduction is to be determined by the court, taking into account all the circumstances of the specific case. In its assessment, the national court can therefore take into account the origin of the lack of conformity, whether there was fault on the part of the organiser and the possibility for the organiser to recover further up the business chain or from the State monies paid to the traveller. In the circumstances of the present case, factors relevant to that assessment include the fact that the lack of conformity was exclusively due to the measures adopted in view of the public health emergency and intending to protect the public, including the travellers.

39. Finally, it is important to emphasise that Directive 2015/2302 does not prescribe a specific time limit for the payment of the price reduction to which the traveller is entitled in the event of lack of conformity. With regard to compensation, Article 14(2) of Directive 2015/2302 requires that it be made ‘without undue delay’. Despite the absence of a similar reference as regards the payment of the price reduction, it would be consistent with the protective purpose of the directive to consider that the price reduction must also be paid ‘without undue delay’. In the present case, such an interpretation would allow the national court to take into account the liquidity problems of the travel organisers which were heavily affected by the COVID‑19 pandemic.

40. In the light of the above, I consider that the amount of the price reduction to which a traveller is entitled pursuant to Article 14(1) of Directive 2015/2302 must be appropriate taking into account all the circumstances of the case, which is a matter for the national court to determine.

41. On the basis of the analysis set out above, I propose that the Court answer the questions referred by the Landgericht München I (Regional Court, Munich I, Germany) as follows:

Article 14(1) of Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC,

the traveller is entitled to a price reduction for lack of conformity in the performance of the package contract, in circumstances where the lack of conformity is due to restrictions imposed to prevent the spread of an infectious disease that is prevalent at the travel destination, where such restrictions are also imposed in the traveller’s place of residence and worldwide. However, the amount of the price reduction must be appropriate taking into account all the circumstances of the case, which is a matter for the national court to determine.

2 See the data compiled by the World Tourism Organisation (https://www.unwto.org/tourism-data/international-tourism-and-covid-19).

3 See World Economic Forum, ‘This is the impact of COVID‑19 on the travel sector’ (https://www.weforum.org/agenda/2022/01/global-travel-tourism-pandemic-covid-19/).

4 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ 2015 L 326, p. 1).

5 Judgment of 30 September 2021, Commerzbank (C‑296/20, EU:C:2021:784, paragraph 40 and the case-law cited).

6 Judgment of 1 October 2019, Planet49 (C‑673/17, EU:C:2019:801, paragraph 48).

7 See, by analogy, judgment of 18 March 2021, Kuoni Travel (C‑578/19, EU:C:2021:213, paragraph 34).

8 See, to that effect, judgment of 18 March 2021, Kuoni Travel (C‑578/19, EU:C:2021:213, paragraph 45).

9 The Commission cites to that effect the Opinion of Advocate General Szpunar in Kuoni Travel (C‑578/19, EU:C:2020:894, point 40).

10 Proposal for a Directive of the European Parliament and of the Council on package travel and assisted travel arrangements, amending Regulation (EC) No 2006/2004, Directive 2011/83/EU and repealing Council Directive 90/314/EEC, (COM/2013/0512 final – 2013/0246 (COD)).

11 Berger, K.P. and Behn, D., ‘Force Majeure and Hardship in the Age of Corona: A Historical and Comparative Study’, McGill Journal of Dispute Resolution, Vol. 6 (2019-2020), Number 4, pp. 79-130, p. 91.

12 See Heinich, J., ‘L’incidence de l’épidemie de coronavirus sur les contrats d’affaires : de la force majeure à l’imprévision’, Recueil Dalloz, 2020, p. 611, and Philippe, D., ‘The Impact of the Coronavirus Crisis on the Analysis and Drafting of Contract Clauses’, in Hondius, E., Santos Silva, M., Nicolussi, A., Salvador Coderch, P., Wenderhorst, C. and Zoll, F. (eds), Coronavirus and the Law in Europe, Intersentia, Cambridge, Antwerp, Chicago, 2021, pp. 527-552, p. 537. In general, see Aune, A.C., Le “fait du prince” en droit privé, RLDC, 2008, 2930.

13 See Philippe, D., ‘The Impact of the Coronavirus Crisis on the Analysis and Drafting of Contract Clauses’, in Hondius, E. et al., op. cit., pp. 527 and 537.

14 See, Borghetti, J.‑S., ‘Non-Performance and the Change of Circumstances under French Law’, in Hondius, E. et al., op. cit., pp. 509-526, p. 515, who points out that ‘except in the exceptional case where the lockdown measures were reasonably foreseeable at the time of the conclusion of the contract, these measures should …be regarded as amounting to force majeure …’.

16 Communication from the Commission Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak 2020/C 91 I/01, C/2020/1863 (OJ 2020 C 91I, p. 1) (‘the Temporary Framework’). Since its adoption, the Temporary Framework has been amended six times.

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