Tourism Law in Europe

prohibition of any limitation of liability as in sec. 12(4) of the Austrian Package Travel Act would be contrary to the Directive. Although these arguments seem quite valid, the organiser overlooked that both clauses contain limitations of liability for slight negligence and thus violate both, the Austrian Package Travel Act and the PTD. The issue of whether the transposition of Article 14(4) PTD into Austrian law was contrary to the Directive therefore was not prejudicial and the organiser’s motion and appeal were both dismissed by the Higher Regional Court of Appeal Linz 31 . The decision is final. In my view, the cause of the confusion was a fundamental misunderstanding by the Austrian legislator of the liability provisions in the PTD: if the PTD does not make liability conditional on fault, this can only mean that it is independent of fault and there is no place for a fault requirement in national law. To comply with Article 14(4) PTD, sec. 12(4) Package Travel Act therefore has to be amended accordingly. Any exclusion or limitation of liability for slight negligence would then still remain unlawful while limitations of liability for damages (other than personal injury) caused without fault would become possible. The moral of the story: good legislation should bring clarity and not confusion 32 . 4. Insolvency Protection In contrast to other countries 33 , the Austrian legislator has not implemented the provisions on insolvency insurance for package organisers 34 and facilitators of linked travel arrangements 35 within the framework of the civil law provisions on the package tour contract but as a separate regulation 36 on the basis of a respective authorisation in the Trade Regulations Act 37 . 31 OLG Linz 30.7.2020, 1 R 170/19d. 32 Bill Haslam, American politician. 33 Eg Germany: sec. 651r and 651s Civil Code (BGB). 34 Art. 17 PTD. 35 Art. 19 PTD. 36 Package Travel Regulation – Pauschalreiseverordnung (PRV) BGBl II No. 260/2018. 37 Sec. 127 para 1 Trade Regulations Act.