Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MICHAEL WUKOSCHITZ 189 Article 5 para 2 PTD 1990 Article 14 para 3 PTD 2015 With regard to the damage resulting for the consumer from the failure to perform (…) the organizer and/or retailer is/are liable unless such failure (…) is attributable neither to any fault of theirs nor to that of another supplier of services, because: – the failures (…) 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 (…), 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. The traveller shall not be entitled to compensation for damages if the organiser proves that the lack of conformity is: a) attributable to the traveller; b) attributable to a third party 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 . The last bullet of Article 5 para 3 PTD 1990 covered the alternatives of: • force majeure 20 ; or • an event which the organiser and/or retailer or the supplier of services, even with all due care, could not foresee or forestall and was therefore widely regarded as providing for fault liability with a reversed burden of proof 21 because the second alternative of “ an event which the organizer 20 Defined in Article 4 para 6 lit a (ii) PTD 1990 as “ 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 ”. 21 See Study on Safety and Liability Issues Relating to Package Travel (IP/A/IMCO/FWC/2006-058/LOT 4/ C1/SC5) by Dr. Frank Allweldt , Prof. Klaus Tonner , Marc McDonald , Dr. Senda Kara , Bilgin Ayata and Uta Stenzel , 5: “( … ) although it remains convenient to use the term strict liability, in effect what Art. 5 does is it reverses the usual burden of proof in claims and requires organisers to prove they were not to blame, rather than requiring consumers to prove that they were ” .