Tourism Law in Europe

This legal situation was the basis for a cease and desist claim filed against a package organiser by an Association for Fair Competition because of a clause in the organiser’s general terms and conditions which read: “ As far as the organiser is responsible for persons other than his employees, he shall only be liable – except in cases of personal injury – if he cannot prove that these persons acted neither intentionally nor grossly negligent ”. As by limiting the liability of the organiser to gross negligence and intent this clause clearly infringed sec. 12(4) of the Austrian Package Travel Act, the motion for injunction was based on the allegations that the clause was not only unlawful but also deceptive because it was likely to mislead travellers about their rights against the organiser. In the course of the proceedings, the respective organiser amended his terms and conditions and replaced the disputed clause with a new clause providing for a limitation of the organiser’s liability for “excusable mistakes up to negligence”. This new clause still infringed Austrian and European law and the claim for injunction was therefore upheld by the plaintiff - and granted by the Regional Court of Linz 29 . However, the organiser did not only file an appeal against this judgement but also tried to challenge the Austrian law before the Constitutional Court, alleging that it was infringing the principle of equality, the freedom of economic activity and the right to property. By decision of June 8, 2020 30 , the Constitutional Court dismissed the motion of the organiser and held that the court had no objections to a rule prohibiting package organisers from limiting in advance the payable compensation in the package contract. The differences in factual circumstances would justify different liability regimes between package organisers on the one hand and suppliers of individual travel services on the other. Hence, there was no violation of the fundamental rights invoked by the organiser. However, this did not cause the latter to give up: he rather suggested lodging a request for preliminary ruling before the CJEU. The organiser argued that due to the full harmonisation principle of the PTD the Austrian legislator didn’t have a scope for implementation. As fault was not a prerequisite for liability under the PTD, a total 29 LG Linz 1.10.2019, 4 Cg 80/19f. 30 VfGH 8.6.2020, G 265/2019-16.