Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MICHAEL WUKOSCHITZ 191 activity of the organiser, and which causes a lack of conformity, would give rise to liability of the organiser, even if the event was beyond their control and its consequences could not have been avoided when all reasonable measures had been taken. The difference between the two concepts can be illustrated in the following case: The plaintiff booked a package holiday to the Canary Islands organised by the defendant. On the day before the scheduled return trip, he tried to open the bathroom door in his hotel room but the door handle broke and caused a deep cut in his right hand. The door handle was a customary product of a renowned producer, widely used for bathroom doors and connecting doors, and was made of die-cast zinc. There was no evidence, whatsoever, that the door handle had not complied with the applicable standards. Due to the expert opinion delivered in the proceedings, only an expert in metallurgy could have realised, from minor traces of corrosion on the surface of the door handle, that there was a risk that it could break. The court dismissed the claim for compensation for pain and suffering, and held that the cause of the accident was beyond the control of the defendant and, because the risk was only recognisable for an expert in metallurgy, there had been no reasonable measures the defendant (or the defendant’s local supplier) could have taken to avoid the accident 24 . If the defence of “unavoidable and extraordinary circumstances” only refers 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, there would probably not be much change in the result according to the PTD 2015. However, if “unavoidable and extraordinary circumstances” involved 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, the claim probably would have been granted because the risk that a door handle may break cannot be regarded as “outside the ordinary” or not being inherent of the normal operation of a hotel. In the end it is up to the CJEU to decide whether: • the omission of any element like “outside the ordinary” or “unusual” in the definition of “ unavoidable and extraordinary circumstances ” was an error of the legislator in drafting the PTD 2015; or 24 Bezirksgericht für Handelssachen Wien (Vienna Small Claims Court in Commercial Matters), judgement 6 C 606/14g of 15 Sep 2015.