Collective Commentary about the New Package Travel Directive

352 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE harmful conduct has no connection to the provision of the services (e.g. a member of the cleaning staff injuring a traveller after official hours in the bar). The damage in such cases falls outside the scope of duties conferred on the respective person as an agent of the organiser or one of his suppliers 31 . In a heavily discussed recent judgement 32 , the Court of Appeal of England and Wales held that a tour organiser was not liable for the rape of a traveller by a hotel electrician who had pretended to show her a shortcut to the hotel reception when she wanted to change room during the night. While one can agree that the rapist had not acted in the course of the provision of travel services when committing the assault, the Court of Appeal’s argument that the rapist could not be regarded as a supplier because he didn’t have a direct contractual relation to the tour organiser seems to be going too far. The case has been brought before the Supreme Court which has made a reference for preliminary ruling of the CJEU. Other than the previous PTD 33 , Article 14 (3) doesn’t explicitly refer to a fault of a supplier of travel services included in the package as a reason for liability. Anyway, there is no doubt that such fault will make the lack of conformity attributable to a party who was connected to the provision of the travel services and therefore will not fall within the exemption. This means that the organiser remains liable for all his suppliers and their staff. According to the wording of Article 14 (3), the exemption only applies if the third party’s harmful conduct was “unforeseeable or unavoidable”. The use of the word “or” suggests that “unforeseeable” and “unavoidable” are only alternative requirements and it is sufficient for the exemption to apply if the third party’s harmful conduct was either unforeseeable or unavoidable. The same wording is used in other language versions of the Directive 34 with the exemption of the German version saying “ weder vorhersehbar noch vermeidbar ” (neither foreseeable nor avoidable) and thus suggesting cumulative requirements. This divergence may become subject to a reference for preliminary ruling of the CJEU. 4. “Due to unavoidable and extraordinary circumstances” The term “ unavoidable and extraordinary circumstances ” reminds on a similar phrase used in the Air Passenger Rights Regulation, speaking of “ extraordinary 31 OGH 13.02.2018, 5 Ob 4/18a. 32 X v Kuoni Travel Ltd [2018] EWCA Civ 398. 33 Article 5 (2) of Directive 90/314/EEC on package travel, package holidays and package tours. 34 Portuguese “ imprevisível ou inevitável ”; French: “ imprévisible ou inévitable ”; Spanish: “ imprevisible o inevitable ”; Dutch: “ niet kon worden voorzien of voorkomen ”; …