Collective Commentary about the New Package Travel Directive

POLAND | PIOTR CYBULA 1083 unconnected with the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable; or (c) due to unavoidable and extraordinary circumstances. Although, at first glance, it may seem that these regulations are almost identical, on closer examination, the difference between these regulations is quite significant. In the Polish Act, the notion of fault appears in the above-mentioned points 1 and 2. First of all, this means that the organiser will be able to invoke these circumstances only if s/he is able to prove fault on the part of these persons, which in many cases will certainly not be simple or even possible. Secondly, this provision, which is incompatible with the Directive, should be amended as soon as possible. (14) The problem of separating the concept of “compensation” in Article 14(2) of the Directive is also worth noting. Under this provision “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”. The Polish legislator, in Article 50(2) of the Act, states that “The traveller shall be entitled to compensation or an appropriate amount of money for the damage or harm suffered as a result of lack of conformity. The travel organiser shall immediately pay compensation or an appropriate amount ofmoney”.Therefore, theDirective provides “compensation” (for material and non-material damage) and the A.P.T. provides “compensation” (for material damage) and “or an appropriate amount of money” (for harm). Such a distinction has been criticised in the Polish legal doctrine. It has been pointed out that in Polish law lost pleasure from holidays is not a harm but a non-material damage, these concepts cannot be identified. The pleasure lost is not the result of a breach of personal rights or of other absolute rights, for which harm can be said to have occurred. Consequently, it is submitted that the use in this context of the concept of harm, which can only be caused by a breach of an obligation, will constitute a source of terminological confusion 37 . (15) The unintended consequence of this aforementioned distinction seems to be restricting the ability of travel organisers to invoke their limited liability. In accordance with Article 14(4) in fine of the Directive “the package travel contract may limit compensation to be paid by the organiser as long as that limitation 37 See F. Zoll, [in:] A. Olejniczak (ed.), System Prawa Prywatnego , vol. 6, Prawo zobowiązań – część ogólna , Warsaw 2018, p. 1056.