Collective Commentary about the New Package Travel Directive

POLAND | PIOTR CYBULA 1071 Firstly, the issue of compensation for non-pecuniary damage suffered as a result of the non-performance or improper performance of the package travel contract was a significant problem. As it is well known, the Leitner judgment 10 was a milestone for Directive 90/314. In Polish law, according to the view prevailing in both literature and case-law, compensation for non-performance or improper performance of a contract may, as a rule, be awarded only for material damage. The perspective of the Leitner judgment in the absence of a clear regulation of the liability of the organiser for non-pecuniary damage due to non- -performance or improper performance of the contract for package travel in the Act on tourist services, gave rise to the need to seek a solution that would meet the requirements of the EU law. Until the Supreme Court’s ruling of 19 November 2010 11 , Polish courts’ jurisprudence in this respect was very diverse – in some cases the court dismissed actions for such claims, in others, damages were awarded, but the legal grounds for these favourable judgments were varied 12 . In the aforementioned judgment, the Supreme Court stated that “The provision of Article 11a(1) of the Act of 29 August 1997 on tourist services (...) may be the basis for the liability of the travel organiser for non-pecuniary damage to the customer in the form of so-called wasted holidays”. This decision was a breakthrough for later jurisprudence, as well as for the position of the legal doctrine. Secondly, customer protection in case of insolvency of travel organisers was also an important problem. For a number of years, this protectionwas single-pillar in nature. Travel organisers were required to provide financial security in one of three forms: insurance guarantee, bank guarantee contract or insurance guarantee. Later, the possibility for travel organisers arranging package travel exclusively in the Republic of Poland to pay into a trust account was also introduced 13 . Unfortunately, the scope of this protection, despite repeated attempts at sealing, has for a number of years failed to provide customers with protection at the level resulting from Directive 90/314, which has also led to numerous judgments by Polish courts imposing liability for damages on the 10 Judgment of the Court of Justice of 12 March 2002, C-168/00. 11 III CZP 79/10, OSNC No. 4/2011, item 41, Legalis. 12 For more details see A. Koronkiewicz-Wiórek, Ewolucja stanowiska polskiej doktryny i orzecznictwa w kwestii odpowiedzialności organizatora turystyki za szkodę w postaci zmarnowanego urlopu do roku 2016 , [in:] P. Cybula (ed.), Prawne aspekty podróży i turystyki – historia i współczesność. Prace poświęcone pamięci Profesora Janusza Sondla , Cracow 2018, p. 399 et seq. 13 This possibility was introduced by the Act on amending the Act on tourist services and the Act on amending the Code of Petty Offences of 29 April 2010 (Dz. U. No. 106, item 672), which came into force on 17 September 2010.