Collective Commentary about the New Package Travel Directive

190 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE and/or retailer or the supplier of services, even with all due care, could not foresee or forestall ” ultimately does not mean anything else but the absence of fault 22 . In Article 14 para 3 PTD 2015, the term “ force majeure ” has been replaced with “ unavoidable and extraordinary circumstances ” and the second alternative removed. However, the consequences of this amendment depend on the understanding of the term “ unavoidable and extraordinary circumstances ”. If we replace this term by its definition, according to Article 3 para 12 PTD 2015, we get the following result: The traveller shall not be entitled to compensation for damages if the organiser proves that the lack of conformity is: (…) (c) due to a situation beyond the control of the organiser and the consequences of which could not have been avoided, even if all reasonable measures had been taken . This would not mean a big change because “ a situation beyond the control of the organiser and the consequences of which could not have been avoided, even if all reasonable measures had been taken ” ultimately still does not describe anything other than the absence of fault. This means, the liability of the organiser would remain a fault liability with a reversed burden of proof 23 . Acompletely different result is achieved if the term“ unavoidable and extraordinary circumstances ” is replaced with what the CJEU identified as the meaning of “extraordinary circumstances” in the air passenger rights cases quoted above: The traveller shall not be entitled to compensation for damages if the organiser proves that the lack of conformity is: (…) (c) due to an event which is not inherent in the normal exercise of the activity of the organiser and could not have been avoided even if all reasonable measures had been taken . There is no doubt that such interpretation would lead into a strict liability of the organiser who could not any more rely on the defence of having taken all reasonable measures. Any event which is inherent in the normal exercise of the 22 German Supreme Court (BGH) judgement of 09 November2004 in case X ZR 119/01; published in RRa 2005, 12 and NJW 2005, 418. 23 This analysis is shared by Tonner , Der Vorschlag einer neuen Pauschalreiserichtlinie, ZRP 1/2014, 5(7).