Collective Commentary about the New Package Travel Directive

ARTICLE 14 | MICHAEL WUKOSCHITZ 351 The list is exhaustive and unlike the PTD 1990 it doesn’t provide an exemption in cases when the lack of conformity occurred due to “ an event which the organiser and/or retailer or the supplier of services, even with all due care, could not foresee or forestall ” 28 . The quoted text passage was interpreted as the proof of absence of fault 29 . The missing of this exemption in Article 14 (3) therefore means that absence of fault isn’t enough any more to avoid liability. In other words: under the new Directive, the liability of the organiser has turned from a fault liability with a reversed burden of proof to an absolute liability with only the aforementioned exemptions. 2. “Attributable to the traveller” With regard to lack of conformity attributable to the traveller, the same principles apply as for the exemption from price reduction using identical wording 30 . In principle, the following scenarios are covered by the exemption • the traveller has caused the lack of conformity by his own action or omission; • a travel service could not be performed (properly) because of a reason stemming from the traveller’s sphere of risk (illness; accident; etc.); • the traveller has failed to inform the organiser of a lack of conformity perceived at the spot and has thus prevented the organiser from remedying same within appropriate time; • the traveller’s behaviour has made it unreasonable for the organiser to continue with the provision of the travel services. 3. “Attributable to a third party unconnected with the provision of the travel services” The exemption covers lack of conformity caused by another traveller or any person with no connection to the travel services at all. The organiser therefore cannot be held liable for a theft at a market, a sexual assault at the beach or a car accident if such events are caused by persons unconnected with the provision of the travel services. However, even if a certain person is involved in the provision of travel services the exemption could be applied as far as the respective person’s 28 Article 5 (2) of Directive 90/314/EEC on package travel, package holidays and package tours. 29 BGH 09.11.2004, X ZR 119/01 – Reitunfall II . 30 See I. (2) above.