Collective Commentary about the New Package Travel Directive

348 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE Apart from particular cases where it may be reasonable to leave the calculation of the appropriate price reduction to an expert, in Austrian and German court practice, the amount granted usually is subject to judicial discretion. In principle, the full package price serves as the calculation base for the price reduction 17 . Booking fees of retailers or costs of travel insurances, however, do not form parts of the package price and therefore are not subject to the price reduction. According to the clear wording of Article 14 (1) the right of price reduction only applies “ for the period during which there was lack of conformity ”. If the lack of conformity only affects a certain part of the package only the proportionate part of the package price therefore will be subject to reduction 18 . If a package consists of clearly separate parts (like a sightseeing roundtrip and a beach holiday thereafter) and the individual prices of the parts are disclosed it can be considered to only take the price of the part affected by the lack of conformity as calculation base for the price reduction. 3. Defence of the Organiser The only defence the tour organiser can raise against a claim for price reduction is that the lack of conformity was attributable to the traveller himself. This doesn’t only apply in cases when the traveller actively caused the lack of conformity (e.g. by damaging the air conditioning or not being present on time for an airport shuttle) but also if the traveller is not willing or able to receive a service included in the package due to reasons from his sphere (like illness). Moreover, I would say that a lack of conformity becomes attributable to the traveller if – despite his obligation according to Article 13 (2) – he failed to inform the organiser of the lack of conformity without undue delay and thus prevented the organiser from taking appropriate measures to remedy the lack of conformity. From the time when the lack of conformity could have been remedied if notice had been given the traveller shall therefore not be entitled to price reduction. If the traveller by his behaviour (being heavily drunk, molesting or endangering other travellers or suppliers’ staff, breaking local laws or threatening public order at the destination) makes it unreasonable for the organiser to continue with the provision of the travel services, the resulting (partial) non-performance of these services will also be attributable to the traveller who therefore will not be entitled to price reduction in such cases. However, it shall be the burden of proof of the organiser that the traveller showed such kind of behaviour. 17 Tonner , MüKo 6 § 651d BGB Rn 19. 18 OGH 25.02.2004, 3 Ob 271/03d; Tonner , MüKo 6 § 651d BGB Rn 19.