Collective Commentary about the New Package Travel Directive

820 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE B. The delicate issue of extent of responsibility 1. Current position under French law When the Directive of 1990 was transposed in France with the law nr.92-645 of 13 July 1992, a special liability regime was adopted. In fact, the French legislator decided to implement a severe regime as he provided for strict liability of the organisers, as well as of the retailers who are organising or selling a package (“ responsabilité de plein droit ”). Article L.211-16 of the tourism code provides: Any natural or legal person who carries out the operations referred to in Article L.211-1 shall be strictly liable to the purchaser for the proper performance of the obligations arising from the contract, whether this contract has been concluded at and that these obligations are to be carried out by himself or by other service providers, without prejudice to his right of recourse against them and within the compensation limits provided for in international conventions. However, he may be exonerated from all or part of his liability by proving that the non-performance or improper performance of the contract is attributable either to the purchaser or to the unforeseeable and unavoidable act of a third party unconnected with the provision of the services provided for in the contract, or to a case of force majeure. According to the above provisions, the traveller does not have to establish the fault of the organiser or the retailer (who receives the same provisions under French law) and does not even need to show evidence of the foreign law of the country where the improper performance or accident took place, nor of the negligence of the local service provider! Therefore, in case of improper or absence of performance, the traveller is entitled to bring proceedings against the organiser, the retailer or both. The organiser or the retailer currently have an “obligation of result” towards the traveller, but they also have a duty of security. The prejudice sustained by the traveller may thus consist in a material damage but also in a non-material damage (moral damage, see hereinafter). The organiser or the retailer are deemed to be liable but they can raise a defence regarding the traveller’s claim. Therefore, the liability will be held pursuant to Article L.211-16 of the tourism code, unless the defendant can establish that failure to perform or improper performance is: