Collective Commentary about the New Package Travel Directive

ARTICLE 14 | MICHAEL WUKOSCHITZ 345 package ”. While it is rather easy to determine when a travel service included in the package has not been performed at all (e.g. no flight or accommodation has been provided) it is much harder to identify “improper performance”. No doubt though, that a service is not performed properly if it is lacking an explicitly promised quality (e.g. despite being situated “directly at the beach” as stipulated, the hotel turns out to be 5 kms away from the nearest beach) 2 . Austrian and German courts regarded the content of brochures of the organiser and other kinds of descriptions of the services provided by the organiser including online descriptions and pictures as such explicit promises 3 . However, the organiser can only be regarded to be bound by his own descriptions but not by descriptions provided by other parties including the suppliers themselves: retailers usually cannot be regarded to be authorised to amend or change descriptions provided by the organiser. Apart from non-compliance with an explicitly promised quality, it has to be regarded “improper performance” if a service does not comply with the implied terms of the contract or is not suitable for the purpose of the package (e.g.: relaxation, adventure, education, etc.). When evaluating whether the performance of a certain service has been “improper” the applicable standards can make a big difference. So far Austrian and German courts with regard to safety standards tend to more or less base their decisions on “reasonable expectations” of the consumer and regarded compliance with local standards as a fundamental requirement 4 . U.K. Courts, on the other hand, rather strictly apply local standards with the burden of proof on the claimant 5 . According to Austrian and German case law, any circumstance which falls within the general risks and hazards in life such as the hazards usually connected to travel (like getting an infection, becoming victim of a car accident or a pickpocket) or typical for the activities carried out at the destination (swimming, skiing, etc.) does not constitute a lack of conformity 6 . Same applies to country- -specific conditions like a more exuberant street life with music until late night in southern countries, left-hand traffic in the U.K., rainy seasons in Southeast Asia or local dress codes. These differences cannot be regarded as any detriment 2 See Grant/Mason/Bunce , Holiday Law 6 , 5-013. 3 OGH 20.10.2005, 3 Ob 24/05h and others more; BGH 14.12.1999, X ZR 122/97 and others more. 4 OGH 07.06.2005, 5 Ob 108/05a; BGH 18.07.2006, X ZR 142/05. 5 See Wilson v Best Travel [1993] 1 All ER 353; Lougheed v On the Beach [2014] EWCA Civ 1538; Kerr v Thomas Cook [2015] NIBQ 9. 6 BeckOGK/ Sorge §651i BGB para 150 and following.