Collective Commentary about the New Package Travel Directive

SLOVENIA | MATIJA DAMJAN AND KARMEN LUTMAN 1165 whether he is unable to provide a significant proportion of the travel services after the package travel has started 38 . However, this provision should not be interpreted as giving the organiser a license to avoid indefinitely the obligation to offer alternative arrangements, e.g. by insisting that the services can still be provided as agreed. In the event of a dispute, the inability to provide the services in time can be determined by objective criteria. Yet, the traveller is not entitled to require alternative arrangements if these are not offered by the organiser himself but can only request a price reduction and compensation for damages in accordance with paragraph 6 of Article 13 of the Directive 39 . A discrepancy between the wording of the Directive and the Consumer Protection Act can be found in the provisions concerning price reduction and compensation for damages. Whereas Article 14 of the Directive excludes these traveller’s rights if the organiser can prove that the lack of conformity is attributable to the traveller or to a third party (paragraphs 1 and 3), Article 57.e of the Consumer Protection Act requires the organiser to prove that the traveller or a third party is responsible for the non-conformity (paragraphs 11 and 12). These two terms are not meant as synonymous, since the first paragraph of Article 57.i of the same law clearly distinguishes between attributability and responsibility 40 . Yet, the following paragraph of Article 57.i again excludes the trader’s liability for booking errors in case the consumer is responsible for these errors or if they result from unavoidable and exceptional circumstances. If responsibility should be interpreted in the sense of civil liability, this would impose a higher burden of proof on the organiser in both cases than under the standard of attributability. In order to exculpate himself, the organiser will need to prove not only that the cause of non-conformity arose from the traveller’s or a third party’s sphere but also that they are at fault for the non-conformity due to having acted negligently or with intent. Paragraph 4 of Article 14 of the Directive limits compensation for damages to be paid by the organiser to the travellers insofar as international conventions binding the Union limit compensation to be paid by a provider carrying out a travel service which is part of a package. Furthermore, it allows Member States to expand this limitation where analogous provisions are found in other international conventions not binding the Union. Accordingly, the Consumer 38 Article 57.e(7) of the Consumer Protection Act. 39 Article 57.e(10) of the Consumer Protection Act. 40 Under this provision a trader is responsible for defects caused by technical failures in the booking system that can be attributed to the trader.