Collective Commentary about the New Package Travel Directive

660 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE 4. OPINIONS EXPRESSED IN THE LEGAL DOCTRINE 4.1) In one of the first books published about the new Austrian Package Travel Act 10 , the authors are clearly in favour of consumer protection. They chose the last part of the related explanatory remarks and follow the approach that the legal situation would still remain the same and that any failure of a traveller to inform the organiser, without undue delay, of a lack of conformity which he perceived during the performance of a travel service would therefore not deprive him of his right to price reduction, but could only be regarded as contributory negligence regarding damages. This was different from German law, pursuant to which such failure also had an impact on the right to price reduction. Therefore, it was still important to determine the law governing the contract 11 . Kolba/Steuer avoid making any reference to the full harmonisation principle governing the NPTD. It is seemingly hard to explain how significant differences could still exist between the legal situations in different Member States under that principle. 4.2) The position of Kolba/Steuer is shared by Keiler : according to sec. 12(2) PRG a failure of the traveller to inform the organiser of a lack of conformity only impacted potential compensation for damages, while the right to price reduction would remain unaffected – and therefore there was no change to the previous legal situation 12 . 4.3) Lindinger 13 , however, rather puts the emphasis on the first part of recital (34) of the NPTD, stating that the traveller should be “required” to inform the organiser of any lack of conformity he perceives – and construes that as a strict contractual obligation. As the recitals had to be regarded as bearing a normative nature, any interpretation in conformity with the Directive would require that a traveller’s failure to comply with the information obligation would also impact his right to price reduction. The European legislator could not be regarded as having imposed an obligation on the traveller without stipulating consequences in case of a failure to comply. It would only be reasonable to require the traveller to communicate a lack of 10 Kolba/Steuer , Praxishandbuch Reiserecht. 11 Kolba/Steuer , Praxishandbuch Reiserecht, page 42. 12 Keiler in Keiler/Klauser , Österr. und Europäisches Verbraucherrecht § 11 PRG Rn 3. 13 Lindinger , Zur Rügepflicht im PRG, VbR 2018/70.