Collective Commentary about the New Package Travel Directive

658 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE the National Council and the Federal Council, on 30 March and 4 April. Contrary to what happened in Germany, there wasn’t much discussion or opposition within the legislative process. Subsequently, the new Package Travel Act was published in the Official Journal on 24 April, 2017 3 . 2. THE TRAVELLER’S OBLIGATION TO INFORM THE ORGANISER ON ANY LACK OF CONFORMITY According to Article 13(2) NPTD, the traveller shall inform the organiser without undue delay of any lack of conformity which he perceives during the performance of a travel service included in the package travel contract. However, the Directive doesn’t explicitly provide for any consequences following a traveller’s failure to comply with this obligation. The PTD 1990/314 4 had a similar provision in Article 5(4), which stated that the consumer was supposed to communicate on the spot any failure in the performance of a contract which he perceived to the supplier of the services concerned, as well as to the organiser and/or retailer in writing or through any other appropriate form at the earliest opportunity. This obligation had to be stated clearly and explicitly in the contract. Just like the new Directive, the PTD 1990 did not explicitly provide for any legal consequences of non-compliance with the communication obligation. Seeing as the PTD 1990 was a minimum standard directive, which allowed Member States to adopt or retain more stringent provisions for the purpose of protecting the consumer 5 , the Austrian legislator took a rather consumer friendly approach by stating that a failure to comply with the obligation to communicate a lack of conformity would not deprive the consumer of his rights arising from a warranty (i.e.: remedy of the lack of conformity, price reduction or termination of the contract) but could only be regarded as contributory negligence regarding damages 6 . Moreover, the obligation to communicate a lack of conformity only applied if a local representative of the organiser was available without having to take 3 BGBl I No. 50/2017. 4 Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. 5 Article 8 of the PTD 1990. 6 Sec 31e (2) of the Austrian Consumer Protection Act (KSchG).