Package Travel
Fryderyk Zoll
Package Travel Directive
COUNCIL DIRECTIVE
of 13 June 1990
on package travel, package holidays and package
tours
(90/314/EEC)
Package Travel Directive
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Whereas one of the main objectives of the Community is to complete the internal
market, of which the tourist sector is an essential part;
Whereas the national laws of Member States concerning package travel, package
holidays and package tours, hereinafter referred to as 'packages', show many
disparities and national practices in this field are markedly different, which gives
rise to obstacles to the freedom to provide services in respect of packages and
distortions of competition amongst operators established in different Member
States;
Whereas the establishment of common rules on packages will contribute to the
elimination of these obstacles and thereby to the achievement of a common
market in services, thus enabling operators established in one Member State to
offer their services in other Member States and Community consumers to benefit
from comparable conditions when buying a package in any Member State;
Whereas paragraph 36 (b) of the Annex to the Council resolution of 19 May 1981
on a second programme of the European Economic Community for a consumer
protection and information policy (4) invites the Commission to study, inter alia,
tourism and, if appropriate, to put forward suitable proposals, with due regard for
their significance for consumer protection and the effects of differences in
Member States' legislation on the proper functioning of the common market;
Package Travel Directive
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Whereas in the resolution on a Community policy on tourism on 10 April 1984 (5)
the Council welcomed the Commission's initiative in drawing attention to the
importance of tourism and took note of the Commission's initial guidelines for a
Community policy on tourism;
Whereas the Commission communication to the Council entitled 'A New Impetus
for Consumer Protection Policy', which was approved by resolution of the Council
on 6 May 1986 (6), lists in paragraph 37, among the measures proposed by the
Commission, the harmonization of legislation on packages;
Whereas tourism plays an increasingly important role in the economies of the
Member States; whereas the package system is a fundamental part of tourism;
whereas the package travel industry in Member States would be stimulated to
greater growth and productivity if at least a minimum of common rules were
adopted in order to give it a Community dimension; whereas this would not only
produce benefits for Community citizens buying packages organized on the basis
of those rules, but would attract tourists from outside the Community seeking the
advantages of guaranteed standards in packages;
Whereas disparities in the rules protecting consumers in different Member States
are a disincentive to consumers in one Member State from buying packages in
another Member State;
Package Travel Directive
Article 1
The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member
States relating to packages sold or offered for sale in the territory of the Community.
Article 2
For the purposes of this Directive:
1. 'package' means the pre-arranged combination of not fewer than two of the following when sold or offered for sale
at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight
accommodation:
(a) transport;
(b) accommodation;
(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the
package.
The separate billing of various components of the same package shall not absolve the organizer or retailer from the
obligations under this Directive;
2. 'organizer' means the person who, other than ocasionally, organizes packages and sells or offers them for sale,
whether directly or through a retailer;
3. 'retailer' means the person who sells or offers for sale the package put together by the organizer;
4. 'consumer' means the person who takes or agrees to take the package ('the principal contractor'), or any person on
whose behalf the principal contractor agrees to purchase the package ('the other beneficiaries') or any person to
whom the principal contractor or any of the other beneficiaries transfers the package ('the transferee');
5. 'contract' means the agreement linking the consumer to the organizer and/or the retailer.
Package Travel Directive
Article 3
1. Any descriptive matter concerning a package and supplied by the organizer or the retailer to the
consumer, the price of the package and any other conditions applying to the contract must not
contain any misleading information. 2. When a brochure is made available to the consumer, it shall
indicate in a legible, comprehensible and accurate manner both the price and adequate
information concerning:
(a) the destination and the means, characteristics and categories of transport used;
(b) the type of accommodation, its location, category or degree of comfort and its main features, its
approval and tourist classification under the rules of the host Member State concerned;
(c) the meal plan;
(d) the itinerary;
(e) general information on passport and visa requirements for nationals of the Member State or States
concerned and health formalities required for the journey and the stay;
(f) either the monetary amount or the percentage of the price which is to be paid on account, and the
timetable for payment of the balance;
(g) whether a minimum number of persons is required for the package to take place and, if so, the
deadline for informing the consumer in the event of cancellation.
The particulars contained in the brochure are binding on the organizer or retailer, unless:
- changes in such particulars have been clearly communicated to the consumer before conclusion of the
contract, in which case the brochure shall expressly state so,
- changes are made later following an agreement between the parties to the contract.
Package Travel Directive
Article 4
1. (a) The organizer and/or the retailer shall provide the consumer, in writing or any other appropriate
form, before the contract is concluded, with general information on passport and visa requirements
applicable to nationals of the Member State or States concerned and in particular on the periods
for obtaining them, as well as with information on the health formalities required for the journey
and the stay;
(b) The organizer and/or retailer shall also provide the consumer, in writing or any other appropriate
form, with the following information in good time before the start of the journey:
(i) the times and places of intermediate stops and transport connections as well as details of the place
to be occupied by the traveller, e.g. cabin or berth on ship, sleeper compartment on train;
(ii) the name, address and telephone number of the organizer's and/or retailer's local representative or,
failing that, of local agencies on whose assistance a consumer in difficulty could call.
Where no such representatives or agencies exist, the consumer must in any case be provided with an
emergency telephone number or any other information that will enable him to contract the
organizer and/or the retailer;
(iii) in the case of journeys or stays abroad by minors, information enabling direct contact to be
established with the child or the person responsible at the child's place of stay;
(iv) information on the optional conclusion of an insurance policy to cover the cost of cancellation by
the consumer or the cost of assistance, including repatriation, in the event of accident or illness.
Package Travel Directive
Article 4
4. (a) The prices laid down in the contract shall not be subject to
revision unless the contract expressly provides for the possibility of
upward or downward revision and states precisely how the revised
price is to be calculated, and solely to allow for variations in:
- transportation costs, including the cost of fuel,
- dues, taxes or fees chargeable for certain services, such as landing
taxes or embarkation or disembarkation fees at ports and airports,
- the exchange rates applied to the particular package.
(b) During the twenty days prior to the departure date stipulated, the
price stated in the contract shall not be increased.
Package Travel
5. If the organizer finds that before the departure he is
constrained to alter significantly any of the essential
terms, such as the price, he shall notify the consumer
as quickly as possible in order to enable him to take
appropriate decisions and in particular:
- either to withdraw from the contract without penalty,
- or to accept a rider to the contract specifying the
alterations made and their impact on the price.
The consumer shall inform the organizer or the retailer of
his decision as soon as possible.
Package Travel
6. If the consumer withdraws from the contract pursuant to paragraph 5, or if, for whatever cause, other than the fault
of the consumer, the organizer cancels the package before the agreed date of departure, the consumer shall be
entitled:
(a) either to take a substitute package of equivalent or higher quality where the organizer and/or retailer is able to offer
him such a substitute. If the replacement package offered is of lower quality, the organizer shall refund the
difference in price to the consumer;
(b) or to be repaid as soon as possible all sums paid by him under the contract.
In such a case, he shall be entitled, if appropriate, to be compensated by either the organizer or the retailer, whichever
the relevant Member State's law requires, for non-performance of the contract, except where:
(i) cancellation is on the grounds that the number of persons enrolled for the package is less than the minimum
number required and the consumer is informed of the cancellation, in writing, within the period indicated in the
package description; or
(ii) cancellation, excluding overbooking, is for reasons of force majeure, i.e. unusual and unforeseeable circumstances
beyond the control of the party by whom it is pleaded, the consequences of which could not have been avoided
even if all due care had been exercised.
7. Where, after departure, a significant proportion of the services contracted for is not provided or the organizer
perceives that he will be unable to procure a significant proportion of the services to be provided, the organizer
shall make suitable alternative arrangements, at no extra cost to the consumer, for the continuation of the packag,
and where appropriate compensate the consumer for the difference between the services offered and those
supplied.
If it is impossible to make such arrangements or these are not accepted by the consumer for good reasons, the
organizer shall, where appropriate, provide the consumer, at no extra cost, with equivalent transport back to the
place of departure, or to another return-point to which the consumer has agreed and shall, where appropriate,
compensate the consumer.
Package Travel
Article 5
1. Member States shall take the necessary steps to ensure that the organizer and/or retailer party to the contract is
liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of
whether such obligations are to be performed by that organizer and/or retailer or by other suppliers of services
without prejudice to the right of the organizer and/or retailer to pursue those other suppliers of services.
2. With regard to the damage resulting for the consumer from the failure to perform or the improper performance of
the contract, Member States shall take the necessary steps to ensure that the organizer and/or retailer is/are
liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to
that of another supplier of services, because:
- the failures which occur in the performance of the contract are attributable to the consumer,
- such failures are attributable to a third party unconnected with the provision of the services contracted for, and are
unforeseeable or unavoidable,
- such failures are due to a case of force majeure such as that defined in Article 4 (6), second subparagraph (ii), or to an
event which the organizer and/or retailer or the supplier of services, even with all due care, could not foresee or
forestall.
In the cases referred to in the second and third indents, the organizer and/or retailer party to the contract shall be
required to give prompt assistance to a consumer in difficulty.
In the matter of damages arising from the non-performance or improper performance of the services involved in the
package, the Member States may allow compensation to be limited in accordance with the international
conventions governing such services.
In the matter of damage other than personal injury resulting from the non-performance or improper performance of
the services involved in the package, the Member States may allow compensation to be limited under the
contract. Such limitation shall not be unreasonable.
3. Without prejudice to the fourth subparagraph of paragraph 2, there may be no exclusion by means of a contractual
clause from the provisions of paragraphs 1 and 2.
Package Travel
4. The consumer must communicate any failure in the performance of a
contract which he perceives on the spot to the supplier of the services
concerned and to the organizer and/or retailer in writing or any other
appropriate form at the earliest opportunity.
This obligation must be stated clearly and explicily in the contract. Article 6
In cases of complaint, the organizer and/or retailer or his local representative,
if there is one, must make prompt efforts to find appropriate solutions.
Article 7
The organizer and/or retailer party to the contract shall provide sufficient
evidence of security for the refund of money paid over and for the
repatriation of the consumer in the event of insolvency.
Article 8
Member States may adopt or return more stringent provisions in the field
covered by this Directive to protect the consumer.
Package Travel
JUDGMENT OF THE COURT (Sixth Chamber)
12 March 2002 (1)
(Directive 90/314/EEC - Package travel, package holidays and
package tours - Compensation for non-material damage)
In Case C-168/00,
REFERENCE to the Court under Article 234 EC by the
Landesgericht Linz (Austria) for a preliminary ruling in the
proceedings pending before that court between
Simone Leitner
and
TUI Deutschland GmbH & Co. KG,
Package Travel
The family of Simone Leitner (who was born on 7 July 1987) booked a package holiday (all-inclusive
stay) with TUI at the ‘Pamfiliya’Robinson club in Side, Turkey (‘the club’) for the period 4 to 18 July
1997.
8. On 4 July 1997 Simone Leitner and her parents arrived at the club. There they spent the entire
holiday and there they took all their meals. About a week after the start of the holiday, Simone
Leitner showed symptoms of salmonella poisoning. The poisoning was attributable to the food
offered in the club. The illness, which lasted beyond the end of the holiday, manifested itself in a
fever of up to 40 degrees over several days, circulatory difficulties, diarrhoea, vomiting and anxiety.
Her parents had to look after her until the end of the holiday. Many other guests in the club also fell
ill with the same illness and presented the same symptoms.
9. Two to three weeks after the end of the holiday a letter of complaint concerning Simone Leitner's
illness was sent to TUI. Since no reply to that letter was received, Simone Leitner, through her
parents, brought an action for damages in the sum of ATS 25 000.
10. The court of first instance awarded the claimant only ATS 13 000 for the physical pain and
suffering (‘Schmerzensgeld’) caused by the food poisoning and dismissed the remainder of the
application, which was for compensation for the non-material damage caused by loss of enjoyment
of the holidays (‘entgangene Urlaubsfreude’). That court considered that, if the feelings of
dissatisfaction and negative impressions caused by disappointment must be categorised, under
Austrian law, as non-material damage, they cannot give rise to compensation because there is no
express provision in any Austrian law for compensation for non-material damage of that kind.
Package Travel
11. The claimant appealed to the Landesgericht Linz, which concurs with the court of first instance so
far as regards Austrian law, but considers that application of Article 5 of the Directive could lead to
a different outcome. In that connection, the Landesgericht cites Case C-355/96 Silhouette
International Schmied [1998] ECR I-4799, paragraph 36, where the Court ruled that, while a
directive cannot of itself impose obligations on an individual and cannot therefore be relied upon
as such against an individual, a national court is required to interpret the provisions of national law
in the light of the wording and the purpose of the directive so as to achieve the result it has in view.
12. The national court observes in addition that the German legislature has adopted legislation
expressly concerning compensation for non-material damage where a journey is prevented or
significantly interfered with and that in practice German courts do award such compensation.
13. Taking the view that the wording of Article 5 of the Directive is not precise enough for it to be
possible to draw from it any definite conclusion as to non-material damage, the Landesgericht Linz
decided to stay proceedings and to refer the following question to the Court for a preliminary
ruling:
‘Is Article 5 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and
package tours to be interpreted as meaning that compensation is in principle payable in respect of
claims for compensation for non-material damage?’
Package Travel
• The question
• 14. By its question the national court seeks
to ascertain whether Article 5 of the Directive
must be interpreted as conferring, in principle,
on consumers a right to compensation for
non-material damage resulting from failure to
perform or the improper performance of the
obligations inherent in the provision of
package travel.
Package Travel
• Arguments of the parties
• 15. According to Simone Leitner, the third recital in
the preamble to the Directive makes it clear that
operators must be able to offer packages in all the
Member States on the same conditions. The fourth
subparagraph of Article 5(2) of the Directive makes it
possible to set contractual limits to liability incurred in
the case of non-material damage resulting from the
non-performance or improper performance of the
services constituting a package holiday. That provision
means that, according to the Directive, non-material
damage must in principle be the subject of
compensation.
Package Travel
•
TUI and the Austrian, French and Finnish Governments are,
essentially, at one in arguing that the harmonisation of national
laws sought by the Directive consists merely of defining a minimum
level of protection for consumers of package holidays. In
consequence, anything not expressly covered by the Directive in
that field, and in particular the kind of damage to be compensated,
remains within the competence of the national legislatures. The
Directive does no more than set out a body of essential common
rules concerning the content, conclusion and performance of
package tour contracts without exhaustively regulating the entire
subject, in particular, matters relating to civil liability. Accordingly,
the existence of a right to compensation for non-material damage
cannot be inferred from the absence of an express reference
thereto in the Directive.
Package Travel
•
•
17. The Belgian Government submits that the general and unrestricted use of the term ‘damage’
in the first subparagraph of Article 5(2) of the Directive implies that that term is to be construed
broadly, with the result that damage of every kind must in principle be covered by the legislation
implementing the Directive. In those Member States which recognise liability for non-material
damage under the ordinary law, the Directive provides the right to set limits to that liability in
accordance with certain criteria. In those Member States in which liability for non-material damage
depends on the existence of an express provision to that effect, the absence of such a provision
must be deemed to exclude absolutely compensation for non-material damage, which is contrary
to the Directive.
18. The Commission first points out that the term ‘damage’is used in the Directive without the
least restriction, and that, specifically in the field of holiday travel, damage other than physical
injury is a frequent occurrence. It then notes that liability for non-material damage is recognised in
most Member States, over and above compensation for physical pain and suffering traditionally
provided for in all legal systems, although the extent of that liability and the conditions under which
it is incurred vary in detail. Lastly, all modern legal systems attach ever greater importance to
annual leave. In those circumstances, the Commission maintains that it is not possible to interpret
restrictively the general concept of damage used in the Directive and to exclude from it as a matter
of principle non-material damage.
Package Travel
The first subparagraph of Article 5(2) of the Directive requires the Member States to take the necessary
steps to ensure that the holiday organiser compensates ‘the damage resulting for the consumer
from the failure to perform or the improper performance of the contract’.
20. In that regard, it is clear from the second and third recitals in the preamble to the Directive that it
is the purpose of the Directive to eliminate the disparities between the national laws and practices
of the various Member States in the area of package holidays which are liable to give rise to
distortions of competition between operators established in different Member States.
21. It is not in dispute that, in the field of package holidays, the existence in some Member States but
not in others of an obligation to provide compensation for non-material damage would cause
significant distortions of competition, given that, as the Commission has pointed out, non-material
damage is a frequent occurrence in that field.
22. Furthermore, the Directive, and in particular Article 5 thereof, is designed to offer protection to
consumers and, in connection with tourist holidays, compensation for non-material damage arising
from the loss of enjoyment of the holiday is of particular importance to consumers.
23. It is in light of those considerations that Article 5 of the Directive is to be interpreted. Although
the first subparagraph of Article 5(2) merely refers in a general manner to the concept of damage,
the fact that the fourth subparagraph of Article 5(2) provides that Member States may, in the
matter of damage other than personal injury, allow compensation to be limited under the contract
provided that such limitation is not unreasonable, means that the Directive implicitly recognises the
existence of a right to compensation for damage other than personal injury, including non-material
damage.
Package Travel
• 24. The answer to be given to the question
referred must therefore be that Article 5 of
the Directive is to be interpreted as
conferring, in principle, on consumers a right
to compensation for non-material damage
resulting from the non-performance or
improper performance of the services
constituting a package holiday.
Package Travel
JUDGMENT OF THE COURT (Third Chamber)
30 April 2002 (1)
(Directive 90/314/EEC - Package travel, package holidays and package tours Definition of ‘package travel’and ‘pre-arranged’)
In Case C-400/00,
REFERENCE to the Court under Article 234 EC by the Tribunal Judicial da
Comarca do Porto (Portugal) for a preliminary ruling in the proceedings
pending before that court between
Club-Tour, Viagens e Turismo SA
and
Alberto Carlos Lobo Gonçalves Garrido,
Third party:
Club Med Viagens Ld.²,
on the interpretation of Article 2(1) of Council Directive 90/314/EEC of 13
June 1990 on package travel, package holidays and package tours,
Package Travel
The dispute in the main proceedings and the questions referred
6. Mr Lobo Gonçalves Garrido purchased from Club-Tour, for PTE 1 692 928, a holiday consisting of air tickets and
accommodation for two weeks, full board, in the holiday village of Gregolimano (Greece).
7. For that purpose, Club-Tour bought a holiday from the travel agency Club Med Viagens Ld.² (‘Club Med’). It was thus
Club Med which undertook to make the necessary reservations at the holiday village of Gregolimano for
accommodation, meals and transfers, organised and published the holiday programme, and fixed the overall price.
8. On their arrival at the holiday village, Mr Lobo Gonçalves Garrido and his family noticed that it was infested by
thousands of wasps, which prevented them - throughout their stay - from fully enjoying their holiday. Moreover,
the immediate request by Mr Lobo Gonçalves Garrido for the transfer of himself and his family to another village
could not be dealt with by Club-Tour, as the Club Med which it contacted stated that it was not in a position to
arrange appropriate alternative accommodation.
9. For that reason, on his return home, Mr Lobo Gonçalves Garrido refused to pay the price of the holiday agreed
with Club-Tour. The latter thereupon sought an order from the Tribunal Judicial da Comarca do Porto that Mr Lobo
Gonçalves Garrido pay the price of the holiday. Before that court, Club-Tour denied that the Directive applied to
the present proceedings, arguing that the holiday sold was outside its scope.
10. Taking the view that the Directive aims to protect consumers of holiday services by making tour operators and
travel agents liable for loss caused to consumers as a result of the improper execution of a contract, and that
national law must be interpreted and applied in accordance with the Directive, the Tribunal Judicial da Comarca
do Porto referred the following questions to the Court for a preliminary ruling:
‘(1) Does a package organised by the agency, at the request and on the initiative of the consumer or a strictly defined
group of consumers in accordance with their wishes, including transport and accommodation through a tourism
undertaking, at an inclusive price, for a period of more than 24 hours or including overnight accommodation, fall
within the scope of the concept of “package travel”as defined in Article 2(1)?
(2) May the expression “pre-arranged”which appears in the directive be interpreted as referring to the moment when
the contract is entered into between the agency and the customer?’
Package Travel
The first question
11. By the first question, the court of reference essentially asks whether the word ‘package’used in Article 2(1) of the
Directive must be interpreted as including holidays organised by a travel agency at the request of and according to
the specifications of a consumer or a defined group of consumers.
12.
In line with the submissions of the governments and of the Commission to this Court, the answer to that
question must be in the affirmative.
13. The Directive, which is designed amongst other things to protect consumers who buy ‘package’holidays, gives a
definition of that term in Article 2(1) whereby it is enough, for a service to qualify as a ‘package’, if, first, the
combination of tourist services sold by a travel agency at an inclusive price includes two of the three services
referred to in that paragraph (namely transport, accommodation and other tourist services not ancillary to
transport or accommodation and accounting for a significant proportion of the package), and, second, that service
covers a period of more than 24 hours or includes overnight accommodation.
14. There is nothing in that definition to suggest that holidays organised at the request and in accordance with the
specifications of a consumer or a defined group of consumers cannot be considered as ‘package’holidays within
the meaning of the Directive.
15. That definition is reinforced by point (j) of the Annex to the Directive, which provides that, among the elements
to be included in a contract covered by the Directive are ‘special requirements which the consumer has
communicated to the organiser or retailer when making the booking, and which both have accepted’.
16.
In those circumstances, the answer to the first question is that the term ‘package’ used in Article 2(1) of the
Directive must be interpreted as including holidays organised by a travel agency at the request of and according to
the specifications of a consumer or a defined group of consumers.
Package Travel
•
•
•
•
•
The second question
17.
By its second question, the referring court essentially asks whether the term ‘pre-arranged
combination’used in Article 2(1) of the Directive must be interpreted as including combinations of
tourist services which are put together at the time when the contract is concluded between the
travel agency and the consumer.
18.
Given the answer suggested by them to the first question, the governments which have
submitted observations to the Court and the Commission propose an affirmative answer to the
second question.
19. As it has been held in paragraph 16 of this judgment that the term ‘package’in Article 2(1) of
the Directive must be interpreted so as to include holidays organised in accordance with the
consumer's specifications, the term ‘pre-arranged combination’ which constitutes one of the
elements of the definition of ‘package’, necessarily covers cases where the combination of tourist
services is the result of the wishes expressed by the consumer up to the moment when the parties
reach an agreement and conclude the contract.
20.
The answer to the second question must therefore be that the term ‘pre-arranged
combination’used in Article 2(1) of the Directive must be interpreted so as to include combinations
of tourist services put together at the time when the contract is concluded between the travel
agency and the consumer.
Package Travel
• 1. The term ‘package’used in Council Directive
90/314/EEC of 13 June 1990 on package travel,
package holidays and package tours, must be
interpreted so as to include holidays organised by
travel agents, at the request of and in accordance
with the specifications of a consumer or limited group
of consumers.
• 2. The term ‘pre-organised combination’used in
Article 2(1) of Directive 90/314 must be interpreted so
as to include combinations of tourist services put
together at the time when the contract is concluded
between the travel agency and the consumer.
Package Travel
JUDGMENT OF THE COURT (Grand Chamber)
7 December 2010 (*)
(Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) –
Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of ‘package
travel’ – Contract for a hotel stay – Presentation of the voyage and the hotel on a website – Concept
of activity ‘directed to’ the Member State of the consumer’s domicile – Criteria – Accessibility of
the website)
In Joined Cases C-585/08 and C-144/09,
REFERENCES for a preliminary ruling under Articles 68 and 234 EC from the Oberster Gerichtshof
(Austria), made by decisions of 6 November 2008 and 26 March 2009, received at the Court on 24
December 2008 and 24 April 2009 respectively, in the proceedings
Peter Pammer
v
Reederei Karl Schlüter GmbH & Co KG (C-585/08),
and
Hotel Alpenhof GesmbH
v
Oliver Heller (C-144/09),
Package Travel
The disputes in the main proceedings and the questions referred for a preliminary ruling
Case C-585/08
14 This dispute, between Mr Pammer, who resides in Austria, and Reederei Karl Schlüter, a company
established in Germany, concerns a voyage by freighter from Trieste (Italy) to the Far East organised
by that company which gave rise to a contract between it and Mr Pammer (‘the voyage contract’).
15 Mr Pammer booked the voyage through Internationale Frachtschiffreisen Pfeiffer GmbH, a
company whose seat is in Germany (‘the intermediary company’).
16 The intermediary company, which operates in particular via the internet, described the voyage on
its website, indicating that there was a fitness room, an outdoor swimming pool, a saloon and video
and television access on the vessel. Reference was also made to three double cabins with shower
and toilet, to a separate living room with seating, a desk, carpeting and a fridge, and to stopping at
ports of call from which excursions into towns could be undertaken.
17 Mr Pammer refused to embark and sought reimbursement of the sum which he had paid for the
voyage, on the ground that that description did not, in his view, correspond to the conditions on
the vessel. Since Reederei Karl Schlüter reimbursed only a part of that sum, that is to say, roughly
EUR 3 500, Mr Pammer claimed payment of the balance, roughly EUR 5 000, together with interest
before an Austrian court of first instance, the Bezirksgericht (District Court) Krems an der Donau.
18 Reederei Karl Schlüter contended that it did not pursue any professional or commercial activity in
Austria and raised the plea that the court lacked jurisdiction.
Package Travel
It is in those circumstances that the Oberster Gerichtshof
decided to stay proceedings and to refer the following
questions to the Court for a preliminary ruling:
‘1.
Does a “voyage by freighter” constitute package
travel for the purposes of Article 15(3) of [Regulation
No 44/2001]?
2.
If the answer to Question 1 is in the affirmative: is
the fact that an intermediary’s website can be
consulted on the internet sufficient to justify a finding
that activities are being “directed” [to the Member
State of the consumer’s domicile] within the meaning
of Article 15(1)(c) of Regulation No 44/2001?’
Package Travel
In order to determine whether a trader whose activity is presented on its website or on that of an
intermediary can be considered to be ‘directing’ its activity to the Member State of the
consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should
be ascertained whether, before the conclusion of any contract with the consumer, it is apparent
from those websites and the trader’s overall activity that the trader was envisaging doing
business with consumers domiciled in one or more Member States, including the Member State
of that consumer’s domicile, in the sense that it was minded to conclude a contract with them.
The following matters, the list of which is not exhaustive, are capable of constituting evidence from
which it may be concluded that the trader’s activity is directed to the Member State of the
consumer’s domicile, namely the international nature of the activity, mention of itineraries from
other Member States for going to the place where the trader is established, use of a language or
a currency other than the language or currency generally used in the Member State in which the
trader is established with the possibility of making and confirming the reservation in that other
language, mention of telephone numbers with an international code, outlay of expenditure on an
internet referencing service in order to facilitate access to the trader’s site or that of its
intermediary by consumers domiciled in other Member States, use of a top-level domain name
other than that of the Member State in which the trader is established, and mention of an
international clientele composed of customers domiciled in various Member States. It is for the
national courts to ascertain whether such evidence exists.
On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the Member
State in which the consumer is domiciled is insufficient. The same is true of mention of an email
address and of other contact details, or of use of a language or a currency which are the language
and/or currency generally used in the Member State in which the trader is established.
Package Travel
JUDGMENT OF THE COURT (Fifth Chamber)
16 February 2012 (*)
(Directive 90/314/EEC — Package travel, package holidays and package
tours — Article 7 — Protection against the risk of insolvency or
bankruptcy on the part of the package organiser — Scope —
Insolvency of the organiser on account of its fraudulent use of the
funds transferred by consumers)
In Case C-134/11,
REFERENCE for a preliminary ruling under Article 267 TFEU from the
Landgericht Hamburg (Germany), made by decision of 2 March
2011, received at the Court on 18 March 2011, in the proceedings
Jürgen Blödel-Pawlik
v
HanseMerkur Reiseversicherung AG,
Package Travel
The dispute in the main proceedings and the question referred for a preliminary ruling
10
On 4 August 2009, Mr Blödel-Pawlik booked package travel for himself and his wife with Rhein Reisen GmbH
(‘Rhein Reisen’), a company which, as a travel organiser, had taken out insurance against insolvency — effective
from 1 August 2009 — with HanseMerkur.
11
Rhein Reisen provided Mr Blödel-Pawlik with two notices of guarantee which confirmed that the cost of the trip
would be refunded if the travel services failed to be provided owing to the travel organiser’s insolvency.
12 Before the start of the trip, Rhein Reisen informed Mr Blödel-Pawlik that it was obliged to declare itself insolvent.
13
It is apparent from the file that Rhein Reisen, represented by a sole administrator, never really intended to
organise the trip in question. Both the chronology of events and the transactions shown on the travel organiser’s
bank account statements reveal fraudulent conduct on the part of that operator.
14
In those circumstances, Mr Blödel-Pawlik presented HanseMerkur with a claim for reimbursement of the price
which he had paid for the trip.
15 HanseMerkur argues, however, that it is not required to arrange a refund, since Article 7 of Directive 90/314 does
not cover a situation where the travel has been cancelled solely because of fraudulent conduct on the part of the
travel organiser.
16
The Landgericht Hamburg (Regional Court, Hamburg) is also doubtful as to whether Directive 90/314 seeks to
protect consumers against fraudulent conduct on the part of travel organisers.
17
On the view that resolution of the dispute before it depends on the interpretation of Directive 90/314, the
Landgericht Hamburg decided to stay the proceedings and to refer the following question to the Court for a
preliminary ruling:
‘Does Article 7 of [Directive 90/314] also apply where the travel organiser becomes insolvent because, from the
beginning with fraudulent intent, it has used all the money collected from the travellers for an improper purpose
and it was never intended that the trip would be organised?’
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•
•
•
•
•
Consideration of the question referred
18 By its question, the national court is essentially asking whether Article 7 of
Directive 90/314 is to be interpreted as covering a situation in which the
insolvency of the travel organiser is attributable to its own fraudulent conduct.
19 In that regard, it should be borne in mind, first of all, that Article 7 of
Directive 90/314 places the travel organiser under an obligation to hold sufficient
security for the refund of money paid over and for the repatriation of the
consumer in the event of insolvency, the purpose of that security being to protect
consumers against the financial risks arising from the insolvency of package travel
organisers (see Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94
Dillenkofer and Others [1996] ECR I-4845, paragraphs 34 and 35).
20 Thus, the fundamental objective of that provision is to ensure that the
repatriation of the consumer and the refund of money paid over are guaranteed in
the event of insolvency or bankruptcy on the part of a travel organiser (see, to that
effect, Dillenkofer and Others, paragraphs 35 and 36).
21 It is clear that the wording of Article 7 of Directive 90/314 does not attach to
the guarantee any specific condition regarding the causes of the travel organiser’s
insolvency.
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•
•
•
•
In that connection, the Court has held, in paragraph 74 of its judgment in Case C-140/97
Rechberger and Others [1999] ECR I-3499, that Article 7 of Directive 90/314 imposes an obligation
of result, that is to say, an obligation to guarantee package travellers the refund of money paid over
and their repatriation in the event of the travel organiser’s bankruptcy, and that such a guarantee is
specifically aimed at arming consumers against the consequences of the bankruptcy, whatever the
causes of it may be.
23 The Court inferred from this that facts such as imprudent conduct on the part of the travel
organiser or the occurrence of exceptional or unforeseeable events cannot constitute an obstacle
to the refund of money paid over or to the repatriation of consumers under Article 7 of Directive
90/314 (see Rechberger and Others, paragraphs 75 and 76).
24 Moreover, such an interpretation of Article 7 of Directive 90/314 is substantiated by the
objective which that directive must pursue, which is to ensure a high level of protection for
consumers (see Dillenkofer and Others, paragraph 39).
25 In the light of the above considerations, the answer to the question referred is that Article 7
of Directive 90/314 is to be interpreted as covering a situation in which the insolvency of the travel
organiser is attributable to its own fraudulent conduct.
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Brussels, 9.7.2013
COM(2013) 512 final
2013/0246 (COD)
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
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1.2. Grounds for the proposal
1.2.1. Development of Internet distribution and liberalisation in the airline sector
73% of EU households had access to the Internet in 20119. Almost two-thirds of EU citizens
use the Internet at least once a week, more than half of them every day or almost every day.
Travel services are among the most popular products purchased on-line.
The development of online sales and the liberalisation in the airline sector have changed the
way in which consumers organise their holidays, having led to different ways in which traders
assist consumers in customising combinations of travel services, in particular online. The
relevant traders include travel agents, tour operators, airlines, cruise lines, etc. There is
ambiguity in many Member States as to whether such combinations fall under the scope of the
Directive and whether traders involved in putting together such combinations are liable for the
performance of the relevant services, especially in the online environment.
This is causing uncertainty for traders and consumers.
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Unnecessary compliance costs and obstacles to crossborder trade
Some of the provisions of the Directive have become
outdated or otherwise create
unnecessary burden for companies, such as information
requirements for brochures and the
inclusion of managed business trips.
Legal fragmentation through numerous discrepancies in
the laws of the Member States
generates additional costs for businesses wishing to trade
cross-border.
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1.2.3. Consumer detriment - unclear and outdated rules
The "Consumer Detriment Study in the area of Dynamic Packages"10
estimated the yearly
personal consumer detriment11 in relation to combined travel arrangements
where the
applicability of the Directive is uncertain. The study showed that problems
with such travel
arrangements are more frequent and more detrimental to consumers than
problems related to
traditional packages which are clearly covered by the Directive.
To a certain extent also consumers who buy traditional pre-arranged packages
suffer
detriment, because some provisions of the Directive are outdated, unclear or
leave gaps, e.g.
the absence of a right for consumers to cancel the package before the
departure.
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2.2. Impact Assessment
The Impact Assessment (IA) analysed eight policy options plus certain sub-options.
Option 1 - Maintaining the status quo, i.e. maintaining the Directive in its present form
Option 2 – Guidelines, i.e. maintaining the Directive in its current form and preparing
guidelines, including CJEU rulings and clarification on the scope and liability
Option 3 - Package Travel Label and/ or requirement on traders selling assisted travel
arrangements to state that the services in question do not constitute a package (add-on
options)
Sub-option A - introduction of a "Package Travel Label" – an obligatory logotype to be
presented to consumers when purchasing a package
Sub-option B - introduction of an obligation, for traders offering combined travel
arrangements which are not packages, to clarify that they are not selling a package
Option 4 - Repeal of the Directive and self-regulation by industry
Option 5 - Modernisation of the Directive and coverage of "one-trader packages"
Option 5 involves a legislative revision which would keep the main structure of the existing
Directive, while clarifying its scope through the explicit inclusion of "one-trader packages"
and revising several provisions. The revised Directive would apply to travel services which
are combined for the same trip or holiday on one website or at one high street agent.
Package Travel Directive
Option 6 – Graduated approach - modernisation of the Directive and coverage of both "onetrader"
and "multi-trader" packages while applying a lighter regime to "multi-trader" assisted
travel arrangements
This option corresponds to Option 5 supplemented with a graduated extension of the scope of
the Directive aimed to cover:
- "multi-trader" packages, i.e. combinations of travel services through different traders
showing certain features associated with packages, which would be subject to the same
regime as other packages (including full liability for the proper contractual performance and
the obligation to procure insolvency protection),
-"multi-trader" assisted travel arrangements, i.e. those combinations of travel services which
do not display the typical features of packages and are hence less likely to mislead consumers.
They would be subject to a lighter regime consisting of insolvency protection and an
obligation to state in a clear and prominent manner that each individual service provider is
responsible for the correct performance of the services.
Option 7 – Modernisation of the Directive covering both "one-trader" packages and "multitrader"
travel arrangements
This option includes Option 5 and 6, whilst subjecting all "multi-trader" assisted travel
arrangements to the same obligations as packages.
Option 8 – “Travel Directive”
This option includes Option 7 plus an extension of the scope to stand-alone travel services,
e.g. car rental, accommodation or flights, containing in principle the same rules for all travel
services irrespective of whether they are part of a package or not.
The IA comes to the conclusion that the identified problems will be resolved most
appropriately by Option 6, which this proposal is based upon.
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3. LEGAL ELEMENTS OF THE PROPOSAL
3.1. Summary of the proposed action
The proposed Directive will clarify and modernise the scope of travellers' protection
when
purchasing combinations of travel services for the same trip or holiday by bringing
within its
scope different forms of on-line packages and assisted travel arrangements.
The proposal will ensure that travellers are better informed about the services they
are buying
and grant them clearer remedies if something goes wrong.
At the same time, by reducing legal fragmentation and strengthening mutual
recognition of
insolvency protection, the proposal will minimise obstacles to cross-border trade and
reduce
compliance costs for traders wishing to operate cross-border, and ensure a level
playing-field
in the travel market.
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4. EXPLANATION OF THE PROPOSAL
The proposal consists of 29 articles and two annexes (a table relating articles of Directive
90/314/EEC to articles of this proposal and the Legislative financial statement).
4.1. Subject-matter, scope and definitions (Articles 1-3)
Article 1 sets out the subject-matter of the Directive. In conjunction with the definitions of
'package' and 'assisted travel arrangement' contained in Article 3, Article 2 determines its
scope, taking into account the different ways in which travel services can be combined.
Based on the way in which travel services are presented to the traveller, combinations which
meet any of the alternative criteria laid down in Article 3 (2) will be considered as packages
with the associated legal consequences for information requirements, liability and insolvency
protection.
Combinations where retailers, through linked booking processes, facilitate the procurement of
additional travel services in a targeted manner or where the traveller concludes contracts with
the individual service providers and where the defining features of a package, e.g. an inclusive
or total price, are not present, are defined as 'assisted travel arrangements'. Retailers who are
in the business of facilitating the purchase of 'assisted travel arrangements' are subject to the
requirement to explain clearly to travellers that only the individual service providers are liable
for the performance of the travel services concerned. Furthermore, with a view to ensuring a
certain layer of additional, Union-wide protection compared to the one stemming from rules
on passenger rights or general consumer acquis also for travellers buying more than one travel
service through them, it is appropriate to provide that such retailers have to ensure that, in
case of their own insolvency or the insolvency of any of the service providers, travellers will
receive a refund of their pre-payments and, where relevant, will be repatriated.
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Since it is not appropriate to grant the same level of protection to business travellers whose
travel arrangements are made on the basis of a framework contract concluded between their
employers and specialised operators often offering, on a business-to-business basis, a level of
protection similar to the one stemming from this Directive (so-called managed business
travel), such travel arrangements are excluded from the scope.
Other limitations of the scope are maintained, including for so-called occasionally organised
packages.
Apart from 'packages' and 'assisted travel arrangements' Article 3 defines other key terms of
the Directive, including 'traveller', 'organiser', 'retailer' and 'unavoidable and extraordinary
circumstances'. The 'organiser' is defined as a trader who combines and sells/ offers for sale
packages, either directly or through/together with another trader. Organisers are liable for the
performance of the package (Articles 11 and 12), for providing assistance to the traveller
(Article 14) and procuring insolvency protection (Article 15). Retailers and organisers are
both liable for providing pre-contractual information (Article 4). Retailers are liable for
booking errors (Article 19). Retailers facilitating the procurement of assisted travel
arrangements are obliged to procure insolvency protection (Article 15).
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4.2. Information obligations, conclusion and content of the package travel
contract
(Articles 4 -6)
Article 4 lists specific pre-contractual information which organisers and,
where applicable,
retailers have to provide to travellers wishing to buy a package. These
requirements apply in
addition to information requirements under other applicable directives or
regulations.
Article 5 regulates the conclusion of the package travel contract.
Article 6 contains provisions on the content and the presentation of the
contract or its
confirmation as well as on documents and information to be provided before
the start of the
package.
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4.3. Changes to the contract before the start of the package (Articles 7-10)
Similarly to Article 4 (3) of Directive 90/314/EEC, Article 7 lays down the conditions under
which the traveller's right to transfer the package to another person may be exercised.
Starting from the principle that agreed prices are binding, Article 8 lays down rules on the
possibility and consequences of price changes, given that package travel contracts are often
concluded a long time in advance. These rules are based on the same principles as Article 4
(4) – (6) of Directive 90/314/EEC.
Article 8 (2) maintains the right to impose price increases related to cost of fuel, taxes and
exchange rate fluctuations, but clarifies the conditions compared with Directive 90/314/EEC.
If an organiser reserves the right to price increases, it is now also obliged to grant travellers
price reductions. Prices may not be increased by more than 10% of the price of the package.
With regard to changes other than price changes, distinct rules are set out for insignificant
(Article 9(1)) and significant changes (Article 9 (2) and (3)).
Compared with Directive 90/314/EEC, Article 10 contains additional termination rights for
travellers before the start of the package. The right for travellers to terminate the contract
against an appropriate compensation (Article 10 (1)) corresponds to rules and practices found
in the Member States. Article 10 (2) grants travellers the right to terminate the contract
without compensation in the event of unavoidable and extraordinary circumstances.
Package Travel
4.5. Insolvency protection (Articles 15 and 16)
Directive 90/314/EEC created a general obligation for 'the organiser and/or retailer' to provide
insolvency protection so as to ensure the repatriation of passengers and the refund of advance
payments in the event of insolvency. Due to different legal solutions chosen by the Member
States, this often led to duplication of costs for organisers and retailers. According to Article
15 of this proposal, only package organisers and retailers who facilitate the purchase of
'assisted travel arrangements' are subject to this obligation. At the same time, it lays down
more specific criteria on the effectiveness and the scope of the required protection.
To facilitate cross-border operations, Article 16 (1) explicitly provides for the mutual
recognition of insolvency protection procured under the law of the organiser's/relevant
retailer's Member State of establishment. To ensure administrative cooperation, Article 16
obliges Member States to designate central contact points.
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4.6. Information requirements for assisted travel
arrangements (Article 17)
To ensure legal certainty and transparency for the parties,
retailers offering assisted travel
arrangements have to explain to travellers in a clear and
prominent manner that only the
relevant service providers are liable for performance of the
services and that travellers will not
benefit from any of the Union rights granted to package
travellers, except the right to a refund
of pre-payments and, where relevant, to repatriation in case
the retailer itself or any of the
service providers becomes insolvent.
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4.7. General provisions (Articles 18 – 26)
Article 18 contains particular rules for packages where the organiser it established outside the
EEA.
Under Article 19, retailers involved in the booking of packages and assisted travel
arrangements are liable for booking errors.
Article 20 clarifies that this Directive does not affect the organiser's right to seek redress from
third parties.
Article 21 confirms the imperative nature of the Directive.
Article 22 on enforcement is a standard provision in the consumer acquis.
Article 23 is a standard provision on penalties for infringements of the national provisions
transposing this Directive. Similar provisions can be found in the Consumer Rights Directive
(2011/83/EU) and in the Unfair Commercial Practices Directive (2005/29/EC).
Article 24 obliges the Commission to submit a report on the application of this Directive to
the European Parliament and the Council.
Article 25 (2) amends Directive 2011/83 on consumer rights to ensure that that Directive
applies fully to assisted travel arrangements and that certain general consumer rights apply
also to packages.
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