Collective Commentary about the New Package Travel Directive

AUSTRIA | MICHAEL WUKOSCHITZ 661 conformity if the organiser had notified the traveller about a local representative. Therefore, it was the traveller’s responsibility to comply with the obligation. The attempt to attribute a normative nature to the recitals, however, seems to be doomed to failure: on more than one occasion the CJEU has made clear that that the preamble to a Community act has no binding legal force and cannot be relied upon either as providing grounds for derogation from the actual provisions of the act in question or to interpret those provisions in a manner clearly contrary to their wording 14 . The legislative guidelines of the EU 15 therefore emphasise that the purpose of the recitals is to set out concise reasons for the chief provisions of the enacting terms but they shall not contain any normative provisions. 5. STRICT CONTRACTUAL OBLIGATION – OR “TOOTHLESS TIGER” JUST LIKE BEFORE? In my opinion, the answer to the question lies in the wording of the provisions of the NPTD: According to Article 14 (1) 16 the only defence an organiser can raise against the traveller’s right to price reduction is that the lack of conformity was “attributable to the traveller”, which also constitutes one of the exemptions from compensation for damages under Article 14 (3) 17 . It seems obvious that if a traveller fails to inform the organiser about a lack of conformity, although it could have been remedied upon being noticed, from that moment onwards the lack of conformity (at least partly) becomes attributable to the traveller who took the decision not to communicate the lack of conformity but rather let it persist. If this approach is shared, the failure of the traveller falls within the exemptions of Article 14(1) and Article 14(3) – and therefore affects both elements, price reduction and compensation for damages. By ignoring the connection between a failure to communicate a lack of conformity and the continuation of that lack of conformity, the explanatory remarks to the Austrian Government Bill, as well as the authors following their 14 CJEU C-345/13 – Karen Millen Fashions ; C- 136/04 – Deutsches Milchkontor ; ea. 15 Joint Practical Guide of the European Parliament the Council and the Commission for persons involved in the drafting of European Union Legislation. 16 Adopted literally in sec. 12 (1) PRG. 17 Adopted literally in sec. 12 (3) PRG.