Collective Commentary about the New Package Travel Directive

662 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE approach, create a discrepancy from the NPTD. Thus it cannot be regarded as fully and correctly implemented if the Austrian provisions were interpreted as excluding the impact of a traveller’s failure to communicate a lack of conformity on that traveller’s right to price reduction. Furthermore, such an exclusion seems unreasonable as it could entice travellers to try to make some money from a lack of conformity instead of having it remedied at the earliest opportunity. As a result, I strongly favour the approach that Articles 13 and 14 of the NPTD should be interpreted as meaning that a traveller’s failure to inform the organiser about a lack of conformity makes that lack of conformity attributable to the traveller, from the moment it otherwise could have been remedied, and thus it can reduce or even exclude the traveller’s claim for price reduction with regard to the respective lack of conformity. This approach is fully in line with the implementation of the NPTD in Germany 18 and it is a requirement of the full harmonisation principle to avoid significant differences between the implementation acts of the member states. The approach is based on the wording of the respective provisions of the Directive and there is no need to refer to an alleged binding character of the recitals, which according to established CJEU case law doesn’t exist. Communicating a perceived lack of conformity is a reasonable reaction when the organiser or a representative of the organiser is available and does not require significant efforts. Therefore, it seems only appropriate to apply the same consequences of any lack of conformity which is attributable to the traveller – and consequently turn the “toothless tiger” of the previous law into an effective instrument by imposing a strict obligation on the traveller. 18 BeckOGK/ Kramer § 651o BGB Rn 29; Staudinger in Staudinger/Führich Reiserecht 8 , § 18 Rn 10.