Collective Commentary about the New Package Travel Directive

ARTICLE 14 | MICHAEL WUKOSCHITZ 349 On the other hand, a lack of conformity caused by a third party unconnected with the provision of the travel services included in the package travel contract can still make the organiser liable to price reduction. If therefore relaxation in a hotel promised to be “quiet and peaceful” is disturbed by construction works from the neighbouring area, the traveller can claim for an appropriate price reduction. Even if the lack of conformity is due to unavoidable and extraordinary circumstances the traveller is entitled to price reduction 19 . This, for example, applies when a cruise ship cannot access a certain port because of weather conditions or when the booked accommodation cannot be provided because the hotel was destroyed by a tsunami 20 or a hurricane 21 . II. COMPENSATION FOR DAMAGES According to Article 14 (2) the traveller has a right to be compensated for any damage which he sustains as a result of any lack of conformity. From the wording of the provision (arg. “as a result of ”) it seems that not the lack of conformity itself is regarded as damage but only the detriments caused by the lack of conformity. However, it is established case law in Austria as well as in Germany that a lack of conformity itself can constitute damage. The issue therefore may require clarification by the CJEU. In order to be compensated the traveller will have to produce evidence that • a travel service has not been performed at all or has been performed in an improper way; and • this lack of conformity has caused a particular damage. Surprisingly – despite the clear judgment of the CJEU in the Leitner Case 22 and other than the Commission Draft 23 – the Directive does not explicitly mention immaterial damage like loss of holiday enjoyment as part of the damage to be compensated. However, there is a reference made to this kind of damage in Recital 34 according to which compensation in case of substantial problems in 19 Tonner , MüKo 6 § 651c BGB Rn 18. 20 OGH 30.01.2007, 10 Ob 2/07b. 21 LG Klewe, RRa 2000, 100. 22 CJEU 12.03.2002, C-168/00, Leitner v TUI Deutschland . 23 COM [2013] 512 final.