Package - PowerPoint Presentation

Slide1

Package Travel

Fryderyk ZollSlide2

Package Travel Directive

COUNCIL DIRECTIVE

of 13 June 1990

on package travel, package holidays and package tours

(90/314/EEC) Slide3

Package Travel Directive

Whereas one of the main objectives of the Community is to complete the internal market, of which the tourist sector is an essential part;

Whereas the national laws of Member States concerning package travel, package holidays and package tours, hereinafter referred to as 'packages', show many disparities and national practices in this field are markedly different, which gives rise to obstacles to the freedom to provide services in respect of packages and distortions of competition amongst operators established in different Member States;

Whereas the establishment of common rules on packages will contribute to the elimination of these obstacles and thereby to the achievement of a common market in services, thus enabling operators established in one Member State to offer their services in other Member States and Community consumers to benefit from comparable conditions when buying a package in any Member State;

Whereas paragraph 36 (b) of the Annex to the Council resolution of 19 May 1981 on a second

programme

of the European Economic Community for a consumer protection and information policy (4) invites the Commission to study, inter alia, tourism and, if appropriate, to put forward suitable proposals, with due regard for their significance for consumer protection and the effects of differences in Member States' legislation on the proper functioning of the common market; Slide4

Package Travel Directive

Whereas in the resolution on a Community policy on tourism on 10 April 1984 (5) the Council welcomed the Commission's initiative in drawing attention to the importance of tourism and took note of the Commission's initial guidelines for a Community policy on tourism;

Whereas the Commission communication to the Council entitled 'A New Impetus for Consumer Protection Policy', which was approved by resolution of the Council on 6 May 1986 (6), lists in paragraph 37, among the measures proposed by the Commission, the harmonization of legislation on packages;

Whereas tourism plays an increasingly important role in the economies of the Member States; whereas the package system is a fundamental part of tourism; whereas the package travel industry in Member States would be stimulated to greater growth and productivity if at least a minimum of common rules were adopted in order to give it a Community dimension; whereas this would not only produce benefits for Community citizens buying packages organized on the basis of those rules, but would attract tourists from outside the Community seeking the advantages of guaranteed standards in packages;

Whereas disparities in the rules protecting consumers in different Member States are a disincentive to consumers in one Member State from buying packages in another Member State;Slide5

Package Travel Directive

Article 1

The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to packages sold or offered for sale in the territory of the Community.

Article 2

For the purposes of this Directive:

1. 'package' means the pre-arranged combination of not fewer than two of the following when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:

(a) transport;

(b) accommodation;

(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package.

The separate billing of various components of the same package shall not absolve the organizer or retailer from the obligations under this Directive;

2. 'organizer' means the person who, other than

ocasionally

, organizes packages and sells or offers them for sale, whether directly or through a retailer;

3. 'retailer' means the person who sells or offers for sale the package put together by the organizer;

4. 'consumer' means the person who takes or agrees to take the package ('the principal contractor'), or any person on whose behalf the principal contractor agrees to purchase the package ('the other beneficiaries') or any person to whom the principal contractor or any of the other beneficiaries transfers the package ('the transferee');

5. 'contract' means the agreement linking the consumer to the organizer and/or the retailer. Slide6

Package Travel Directive

Article 3

1. Any descriptive matter concerning a package and supplied by the organizer or the retailer to the consumer, the price of the package and any other conditions applying to the contract must not contain any misleading information. 2. When a brochure is made available to the consumer, it shall indicate in a legible, comprehensible and accurate manner both the price and adequate information concerning:

(a) the destination and the means, characteristics and categories of transport used;

(b) the type of accommodation, its location, category or degree of comfort and its main features, its approval and tourist classification under the rules of the host Member State concerned;

(c) the meal plan;

(d) the itinerary;

(e) general information on passport and visa requirements for nationals of the Member State or States concerned and health formalities required for the journey and the stay;

(f) either the monetary amount or the percentage of the price which is to be paid on account, and the timetable for payment of the balance;

(g) whether a minimum number of persons is required for the package to take place and, if so, the deadline for informing the consumer in the event of cancellation.

The particulars contained in the brochure are binding on the organizer or retailer, unless:

- changes in such particulars have been clearly communicated to the consumer before conclusion of the contract, in which case the brochure shall expressly state so,

- changes are made later following an agreement between the parties to the contract. Slide7

Package Travel Directive

Article 4

1. (a) The organizer and/or the retailer shall provide the consumer, in writing or any other appropriate form, before the contract is concluded, with general information on passport and visa requirements applicable to nationals of the Member State or States concerned and in particular on the periods for obtaining them, as well as with information on the health formalities required for the journey and the stay;

(b) The organizer and/or retailer shall also provide the consumer, in writing or any other appropriate form, with the following information in good time before the start of the journey:

(

i

) the times and places of intermediate stops and transport connections as well as details of the place to be occupied by the

traveller

, e.g. cabin or berth on ship, sleeper compartment on train;

(ii) the name, address and telephone number of the organizer's and/or retailer's local representative or, failing that, of local agencies on whose assistance a consumer in difficulty could call.

Where no such representatives or agencies exist, the consumer must in any case be provided with an emergency telephone number or any other information that will enable him to contract the organizer and/or the retailer;

(iii) in the case of journeys or stays abroad by minors, information enabling direct contact to be established with the child or the person responsible at the child's place of stay;

(iv) information on the optional conclusion of an insurance policy to cover the cost of cancellation by the consumer or the cost of assistance, including repatriation, in the event of accident or illness. Slide8

Package Travel Directive

Article

4

4. (a) The prices laid down in the contract shall not be subject to revision unless the contract expressly provides for the possibility of upward or downward revision and states precisely how the revised price is to be calculated, and solely to allow for variations in:

- transportation costs, including the cost of fuel,

- dues, taxes or fees chargeable for certain services, such as landing taxes or embarkation or disembarkation fees at ports and airports,

- the exchange rates applied to the particular package.

(b) During the twenty days prior to the departure date stipulated, the price stated in the contract shall not be increased. Slide9

Package Travel

5. If the organizer finds that before the departure he is constrained to alter significantly any of the essential terms, such as the price, he shall notify the consumer as quickly as possible in order to enable him to take appropriate decisions and in particular:

- either to withdraw from the contract without penalty,

- or to accept a rider to the contract specifying the alterations made and their impact on the price.

The consumer shall inform the organizer or the retailer of his decision as soon as possible. Slide10

Package Travel

6. If the consumer withdraws from the contract pursuant to paragraph 5, or if, for whatever cause, other than the fault of the consumer, the organizer cancels the package before the agreed date of departure, the consumer shall be entitled:

(a) either to take a substitute package of equivalent or higher quality where the organizer and/or retailer is able to offer him such a substitute. If the replacement package offered is of lower quality, the organizer shall refund the difference in price to the consumer;

(b) or to be repaid as soon as possible all sums paid by him under the contract.

In such a case, he shall be entitled, if appropriate, to be compensated by either the organizer or the retailer, whichever the relevant Member State's law requires, for non-performance of the contract, except where:

(

i

) cancellation is on the grounds that the number of persons enrolled for the package is less than the minimum number required and the consumer is informed of the cancellation, in writing, within the period indicated in the package description; or

(ii) cancellation, excluding overbooking, is for reasons of force majeure, i.e. unusual and unforeseeable circumstances beyond the control of the party by whom it is pleaded, the consequences of which could not have been avoided even if all due care had been exercised.

7. Where, after departure, a significant proportion of the services contracted for is not provided or the organizer perceives that he will be unable to procure a significant proportion of the services to be provided, the organizer shall make suitable alternative arrangements, at no extra cost to the consumer, for the continuation of the

packag

, and where appropriate compensate the consumer for the difference between the services offered and those supplied.

If it is impossible to make such arrangements or these are not accepted by the consumer for good reasons, the organizer shall, where appropriate, provide the consumer, at no extra cost, with equivalent transport back to the place of departure, or to another return-point to which the consumer has agreed and shall, where appropriate, compensate the consumer. Slide11

Package Travel

Article 5

1. Member States shall take the necessary steps to ensure that the organizer and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organizer and/or retailer or by other suppliers of services without prejudice to the right of the organizer and/or retailer to pursue those other suppliers of services.

2. With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organizer and/or retailer is/are liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to that of another supplier of services, because:

- the failures which occur in the performance of the contract are attributable to the consumer,

- such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable,

- such failures are due to a case of force majeure such as that defined in Article 4 (6), second subparagraph (ii), or to an event which the organizer and/or retailer or the supplier of services, even with all due care, could not foresee or forestall.

In the cases referred to in the second and third indents, the organizer and/or retailer party to the contract shall be required to give prompt assistance to a consumer in difficulty.

In the matter of damages arising from the non-performance or improper performance of the services involved in the package, the Member States may allow compensation to be limited in accordance with the international conventions governing such services.

In the matter of damage other than personal injury resulting from the non-performance or improper performance of the services involved in the package, the Member States may allow compensation to be limited under the contract. Such limitation shall not be unreasonable.

3. Without prejudice to the fourth subparagraph of paragraph 2, there may be no exclusion by means of a contractual clause from the provisions of paragraphs 1 and 2. Slide12

Package Travel

4. The consumer must communicate any failure in the performance of a contract which he perceives on the spot to the supplier of the services concerned and to the organizer and/or retailer in writing or any other appropriate form at the earliest opportunity.

This obligation must be stated clearly and

explicily

in the contract. Article 6

In cases of complaint, the organizer and/or retailer or his local representative, if there is one, must make prompt efforts to find appropriate solutions.

Article 7

The organizer and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency.

Article 8

Member States may adopt or return more stringent provisions in the field covered by this Directive to protect the consumer. Slide13

Package Travel

JUDGMENT OF THE COURT (

Sixth

Chamber

)

12

March

2002

(1)

(

Directive

90/314/EEC -

Package

travel

,

package

holidays

and

package

tours

-

Compensation

for

non-material

damage

)

In

Case

C-168/00,

REFERENCE to

the

Court

under

Article

234 EC by

the

Landesgericht

Linz (Austria) for a

preliminary

ruling

in

the

proceedings

pending

before

that

court

between

Simone

Leitner

and

TUI

Deutschland

GmbH

& Co. KG

,Slide14

Package Travel

The family of Simone

Leitner

(who was born on 7 July 1987) booked a package holiday (all-inclusive stay) with TUI at the ‘

Pamfiliya

’ Robinson club in Side, Turkey (‘the club’) for the period 4 to 18 July 1997.

8.     On 4 July 1997 Simone

Leitner

and her parents arrived at the club. There they spent the entire holiday and there they took all their meals. About a week after the start of the holiday, Simone

Leitner

showed symptoms of salmonella poisoning. The poisoning was attributable to the food offered in the club. The illness, which lasted beyond the end of the holiday, manifested itself in a fever of up to 40 degrees over several days, circulatory difficulties,

diarrhoea

, vomiting and anxiety. Her parents had to look after her until the end of the holiday. Many other guests in the club also fell ill with the same illness and presented the same symptoms.

9.     Two to three weeks after the end of the holiday a letter of complaint concerning Simone

Leitner's

illness was sent to TUI. Since no reply to that letter was received, Simone

Leitner

, through her parents, brought an action for damages in the sum of ATS 25 000.

10.     The court of first instance awarded the claimant only ATS 13 000 for the physical pain and suffering (‘

Schmerzensgeld

’) caused by the food poisoning and dismissed the remainder of the application, which was for compensation for the non-material damage caused by loss of enjoyment of the holidays (‘

entgangene

Urlaubsfreude

’). That court considered that, if the feelings of dissatisfaction and negative impressions caused by disappointment must be

categorised

, under Austrian law, as non-material damage, they cannot give rise to compensation because there is no express provision in any Austrian law for compensation for non-material damage of that kind. Slide15

Package Travel

11.

The claimant appealed to the

Landesgericht

Linz, which concurs with the court of first instance so far as regards Austrian law, but considers that application of Article 5 of the Directive could lead to a different outcome. In that connection, the

Landesgericht

cites Case C-355/96

Silhouette International

Schmied

[1998] ECR I-4799, paragraph 36, where the Court ruled that, while a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual, a national court is required to interpret the provisions of national law in the light of the wording and the purpose of the directive so as to achieve the result it has in view.

12.     The national court observes in addition that the German legislature has adopted legislation expressly concerning compensation for non-material damage where a journey is prevented or significantly interfered with and that in practice German courts do award such compensation.

13.     Taking the view that the wording of Article 5 of the Directive is not precise enough for it to be possible to draw from it any definite conclusion as to non-material damage, the

Landesgericht

Linz decided to stay proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is Article 5 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours to be interpreted as meaning that compensation is in principle payable in respect of claims for compensation for non-material damage?’Slide16

Package Travel

The question

14.     By its question the national court seeks to ascertain whether Article 5 of the Directive must be interpreted as conferring, in principle, on consumers a right to compensation for non-material damage resulting from failure to perform or the improper performance of the obligations inherent in the provision of package travel. Slide17

Package Travel

Arguments of the parties

15.     According to Simone

Leitner

, the third recital in the preamble to the Directive makes it clear that operators must be able to offer packages in all the Member States on the same conditions. The fourth subparagraph of Article 5(2) of the Directive makes it possible to set contractual limits to liability incurred in the case of non-material damage resulting from the non-performance or improper performance of the services constituting a package holiday. That provision means that, according to the Directive, non-material damage must in principle be the subject of compensation.Slide18

Package Travel

 TUI and the Austrian, French and Finnish Governments are, essentially, at one in arguing that the

harmonisation

of national laws sought by the Directive consists merely of defining a minimum level of protection for consumers of package holidays. In consequence, anything not expressly covered by the Directive in that field, and in particular the kind of damage to be compensated, remains within the competence of the national legislatures. The Directive does no more than set out a body of essential common rules concerning the content, conclusion and performance of package tour contracts without exhaustively regulating the entire subject, in particular, matters relating to civil liability. Accordingly, the existence of a right to compensation for non-material damage cannot be inferred from the absence of an express reference thereto in the Directive.Slide19

Package Travel

17.     The Belgian Government submits that the general and unrestricted use of the term ‘damage’ in the first subparagraph of Article 5(2) of the Directive implies that that term is to be construed broadly, with the result that damage of every kind must in principle be covered by the legislation implementing the Directive. In those Member States which

recognise

liability for non-material damage under the ordinary law, the Directive provides the right to set limits to that liability in accordance with certain criteria. In those Member States in which liability for non-material damage depends on the existence of an express provision to that effect, the absence of such a provision must be deemed to exclude absolutely compensation for non-material damage, which is contrary to the Directive.

18.     The Commission first points out that the term ‘damage’ is used in the Directive without the least restriction, and that, specifically in the field of holiday travel, damage other than physical injury is a frequent occurrence. It then notes that liability for non-material damage is

recognised

in most Member States, over and above compensation for physical pain and suffering traditionally provided for in all legal systems, although the extent of that liability and the conditions under which it is incurred vary in detail. Lastly, all modern legal systems attach ever greater importance to annual leave. In those circumstances, the Commission maintains that it is not possible to interpret restrictively the general concept of damage used in the Directive and to exclude from it as a matter of principle non-material damage.Slide20

Package Travel

The first subparagraph of Article 5(2) of the Directive requires the Member States to take the necessary steps to ensure that the holiday

organiser

compensates ‘the damage resulting for the consumer from the failure to perform or the improper performance of the contract’.

20.     In that regard, it is clear from the second and third recitals in the preamble to the Directive that it is the purpose of the Directive to eliminate the disparities between the national laws and practices of the various Member States in the area of package holidays which are liable to give rise to distortions of competition between operators established in different Member States.

21.     It is not in dispute that, in the field of package holidays, the existence in some Member States but not in others of an obligation to provide compensation for non-material damage would cause significant distortions of competition, given that, as the Commission has pointed out, non-material damage is a frequent occurrence in that field.

22.     Furthermore, the Directive, and in particular Article 5 thereof, is designed to offer protection to consumers and, in connection with tourist holidays, compensation for non-material damage arising from the loss of enjoyment of the holiday is of particular importance to consumers.

23.     It is in light of those considerations that Article 5 of the Directive is to be interpreted. Although the first subparagraph of Article 5(2) merely refers in a general manner to the concept of damage, the fact that the fourth subparagraph of Article 5(2) provides that Member States may, in the matter of damage other than personal injury, allow compensation to be limited under the contract provided that such limitation is not unreasonable, means that the Directive implicitly

recognises

the existence of a right to compensation for damage other than personal injury, including non-material damage. Slide21

Package Travel

24.     The answer to be given to the question referred must therefore be that Article 5 of the Directive is to be interpreted as conferring, in principle, on consumers a right to compensation for non-material damage resulting from the non-performance or improper performance of the services constituting a package holiday.Slide22

Package Travel

JUDGMENT OF THE COURT (Third Chamber)

30 April 2002

(1)

(Directive 90/314/EEC - Package travel, package holidays and package tours - Definition of ‘package travel’ and ‘pre-arranged’)

In Case C-400/00,

REFERENCE to the Court under Article 234 EC by the Tribunal Judicial

da

Comarca do Porto (Portugal) for a preliminary ruling in the proceedings pending before that court between

Club-Tour,

Viagens

e

Turismo

SA

and

Alberto Carlos Lobo

Gonçalves

Garrido

,

Third party:

Club Med

Viagens

Ld.²

,

on the interpretation of Article 2(1) of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, Slide23

Package Travel

The dispute in the main proceedings and the questions referred

6.     

Mr

Lobo

Gonçalves

Garrido

purchased from Club-Tour, for PTE 1 692 928, a holiday consisting of air tickets and accommodation for two weeks, full board, in the holiday village of

Gregolimano

(Greece).

7.     For that purpose, Club-Tour bought a holiday from the travel agency Club Med

Viagens

Ld.² (‘Club Med’). It was thus Club Med which undertook to make the necessary reservations at the holiday village of

Gregolimano

for accommodation, meals and transfers,

organised

and published the holiday

programme

, and fixed the overall price.

8.     On their arrival at the holiday village,

Mr

Lobo

Gonçalves

Garrido

and his family noticed that it was infested by thousands of wasps, which prevented them - throughout their stay - from fully enjoying their holiday. Moreover, the immediate request by

Mr

Lobo

Gonçalves

Garrido

for the transfer of himself and his family to another village could not be dealt with by Club-Tour, as the Club Med which it contacted stated that it was not in a position to arrange appropriate alternative accommodation.

9.     For that reason, on his return home,

Mr

Lobo

Gonçalves

Garrido

refused to pay the price of the holiday agreed with Club-Tour. The latter thereupon sought an order from the Tribunal Judicial

da

Comarca do Porto that

Mr

Lobo

Gonçalves

Garrido

pay the price of the holiday. Before that court, Club-Tour denied that the Directive applied to the present proceedings, arguing that the holiday sold was outside its scope.

10.     Taking the view that the Directive aims to protect consumers of holiday services by making tour operators and travel agents liable for loss caused to consumers as a result of the improper execution of a contract, and that national law must be interpreted and applied in accordance with the Directive, the Tribunal Judicial

da

Comarca do Porto referred the following questions to the Court for a preliminary ruling:

‘(1)    Does a package

organised

by the agency, at the request and on the initiative of the consumer or a strictly defined group of consumers in accordance with their wishes, including transport and accommodation through a tourism undertaking, at an inclusive price, for a period of more than 24 hours or including overnight accommodation, fall within the scope of the concept of “package travel” as defined in Article 2(1)?

(2)    May the expression “pre-arranged” which appears in the directive be interpreted as referring to the moment when the contract is entered into between the agency and the customer?’ Slide24

Package Travel

The first question

11.     By the first question, the court of reference essentially asks whether the word ‘package’ used in Article 2(1) of the Directive must be interpreted as including holidays

organised

by a travel agency at the request of and according to the specifications of a consumer or a defined group of consumers.

12.     In line with the submissions of the governments and of the Commission to this Court, the answer to that question must be in the affirmative.

13.     The Directive, which is designed amongst other things to protect consumers who buy ‘package’ holidays, gives a definition of that term in Article 2(1) whereby it is enough, for a service to qualify as a ‘package’, if, first, the combination of tourist services sold by a travel agency at an inclusive price includes two of the three services referred to in that paragraph (namely transport, accommodation and other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package), and, second, that service covers a period of more than 24 hours or includes overnight accommodation.

14.     There is nothing in that definition to suggest that holidays

organised

at the request and in accordance with the specifications of a consumer or a defined group of consumers cannot be considered as ‘package’ holidays within the meaning of the Directive.

15.     That definition is reinforced by point (j) of the Annex to the Directive, which provides that, among the elements to be included in a contract covered by the Directive are ‘special requirements which the consumer has communicated to the

organiser

or retailer when making the booking, and which both have accepted’.

16.     In those circumstances, the answer to the first question is that the term ‘package’ used in Article 2(1) of the Directive must be interpreted as including holidays

organised

by a travel agency at the request of and according to the specifications of a consumer or a defined group of consumers. Slide25

Package Travel

The second question

17.     By its second question, the referring court essentially asks whether the term ‘pre-arranged combination’ used in Article 2(1) of the Directive must be interpreted as including combinations of tourist services which are put together at the time when the contract is concluded between the travel agency and the consumer.

18.     Given the answer suggested by them to the first question, the governments which have submitted observations to the Court and the Commission propose an affirmative answer to the second question.

19.     As it has been held in paragraph 16 of this judgment that the term ‘package’ in Article 2(1) of the Directive must be interpreted so as to include holidays

organised

in accordance with the consumer's specifications, the term ‘pre-arranged combination’ which constitutes one of the elements of the definition of ‘package’, necessarily covers cases where the combination of tourist services is the result of the wishes expressed by the consumer up to the moment when the parties reach an agreement and conclude the contract.

20.     The answer to the second question must therefore be that the term ‘pre-arranged combination’ used in Article 2(1) of the Directive must be interpreted so as to include combinations of tourist services put together at the time when the contract is concluded between the travel agency and the consumer. Slide26

Package Travel

1.     The term ‘package’ used in Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, must be interpreted so as to include holidays

organised

by travel agents, at the request of and in accordance with the specifications of a consumer or limited group of consumers.

2.    The term ‘pre-

organised

combination’ used in Article 2(1) of Directive 90/314 must be interpreted so as to include combinations of tourist services put together at the time when the contract is concluded between the travel agency and the consumer. Slide27

Package Travel

JUDGMENT OF THE COURT (Grand Chamber)

7 December 2010 (

*

)

(Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 15(1)(c) and (3) – Jurisdiction over consumer contracts – Contract for a voyage by freighter – Concept of ‘package travel’ – Contract for a hotel stay – Presentation of the voyage and the hotel on a website – Concept of activity ‘directed to’ the Member State of the consumer’s domicile – Criteria – Accessibility of the website)

In Joined Cases C‑585/08 and C‑144/09,

REFERENCES for a preliminary ruling under Articles 68 and 234 EC from the

Oberster

Gerichtshof

(Austria), made by decisions of 6 November 2008 and 26 March 2009, received at the Court on 24 December 2008 and 24 April 2009 respectively, in the proceedings

Peter

Pammer

v

Reederei

Karl

Schlüter

GmbH & Co KG (C‑585/08),

and

Hotel

Alpenhof

GesmbH

v

Oliver Heller (C‑144/09),Slide28

Package Travel

The disputes in the main proceedings and the questions referred for a preliminary ruling

Case C‑585/08

14      This dispute, between

Mr

Pammer

, who resides in Austria, and

Reederei

Karl

Schlüter

, a company established in Germany, concerns a voyage by freighter from Trieste (Italy) to the Far East

organised

by that company which gave rise to a contract between it and

Mr

Pammer

(‘the voyage contract’).

15      

Mr

Pammer

booked the voyage through

Internationale

Frachtschiffreisen

Pfeiffer GmbH, a company whose seat is in Germany (‘the intermediary company’).

16      The intermediary company, which operates in particular via the internet, described the voyage on its website, indicating that there was a fitness room, an outdoor swimming pool, a saloon and video and television access on the vessel. Reference was also made to three double cabins with shower and toilet, to a separate living room with seating, a desk, carpeting and a fridge, and to stopping at ports of call from which excursions into towns could be undertaken.

17      

Mr

Pammer

refused to embark and sought reimbursement of the sum which he had paid for the voyage, on the ground that that description did not, in his view, correspond to the conditions on the vessel. Since

Reederei

Karl

Schlüter

reimbursed only a part of that sum, that is to say, roughly EUR 3 500,

Mr

Pammer

claimed payment of the balance, roughly EUR 5 000, together with interest before an Austrian court of first instance, the

Bezirksgericht

(District Court)

Krems

an

der

Donau

.

18      

Reederei

Karl

Schlüter

contended that it did not pursue any professional or commercial activity in Austria and raised the plea that the court lacked jurisdiction.Slide29

Package Travel

 It is in those circumstances that the

Oberster

Gerichtshof

decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1.      Does a “voyage by freighter” constitute package travel for the purposes of Article 15(3) of [Regulation No 44/2001]?

2.      If the answer to Question 1 is in the affirmative: is the fact that an intermediary’s website can be consulted on the internet sufficient to justify a finding that activities are being “directed” [to the Member State of the consumer’s domicile] within the meaning of Article 15(1)(c) of Regulation No 44/2001?’Slide30

Package Travel

In order to determine whether a trader whose activity is presented on its website or on that of an intermediary can be considered to be ‘directing’ its activity to the Member State of the consumer’s domicile, within the meaning of Article 15(1)(c) of Regulation No 44/2001, it should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with them.

The following matters, the list of which is not exhaustive, are capable of constituting evidence from which it may be concluded that the trader’s activity is directed to the Member State of the consumer’s domicile, namely the international nature of the activity, mention of itineraries from other Member States for going to the place where the trader is established, use of a language or a currency other than the language or currency generally used in the Member State in which the trader is established with the possibility of making and confirming the reservation in that other language, mention of telephone numbers with an international code, outlay of expenditure on an internet referencing service in order to facilitate access to the trader’s site or that of its intermediary by consumers domiciled in other Member States, use of a top-level domain name other than that of the Member State in which the trader is established, and mention of an international clientele composed of customers domiciled in various Member States. It is for the national courts to ascertain whether such evidence exists.

On the other hand, the mere accessibility of the trader’s or the intermediary’s website in the Member State in which the consumer is domiciled is insufficient. The same is true of mention of an email address and of other contact details, or of use of a language or a currency which are the language and/or currency generally used in the Member State in which the trader is established.Slide31

Package Travel

JUDGMENT OF THE COURT (Fifth Chamber)

16 February 2012 (

*

)

(Directive 90/314/EEC — Package travel, package holidays and package tours — Article 7 — Protection against the risk of insolvency or bankruptcy on the part of the package

organiser

 — Scope — Insolvency of the

organiser

on account of its fraudulent use of the funds transferred by consumers)

In Case C‑134/11,

REFERENCE for a preliminary ruling under Article 267 TFEU from the

Landgericht

Hamburg (Germany), made by decision of 2 March 2011, received at the Court on 18 March 2011, in the proceedings

Jürgen

Blödel-Pawlik

v

HanseMerkur

Reiseversicherung

AG,Slide32

Package Travel

The dispute in the main proceedings and the question referred for a preliminary ruling

10      On 4 August 2009,

Mr

Blödel-Pawlik

booked package travel for himself and his wife with

Rhein

Reisen

GmbH (‘

Rhein

Reisen

’), a company which, as a travel

organiser

, had taken out insurance against insolvency — effective from 1 August 2009 — with

HanseMerkur

.

11      

Rhein

Reisen

provided

Mr

Blödel-Pawlik

with two notices of guarantee which confirmed that the cost of the trip would be refunded if the travel services failed to be provided owing to the travel

organiser’s

insolvency.

12      Before the start of the trip,

Rhein

Reisen

informed

Mr

Blödel-Pawlik

that it was obliged to declare itself insolvent.

13      It is apparent from the file that

Rhein

Reisen

, represented by a sole administrator, never really intended to

organise

the trip in question. Both the chronology of events and the transactions shown on the travel

organiser’s

bank account statements reveal fraudulent conduct on the part of that operator.

14      In those circumstances,

Mr

Blödel-Pawlik

presented

HanseMerkur

with a claim for reimbursement of the price which he had paid for the trip.

15      

HanseMerkur

argues, however, that it is not required to arrange a refund, since Article 7 of Directive 90/314 does not cover a situation where the travel has been cancelled solely because of fraudulent conduct on the part of the travel

organiser

.

16      The

Landgericht

Hamburg (Regional Court, Hamburg) is also doubtful as to whether Directive 90/314 seeks to protect consumers against fraudulent conduct on the part of travel

organisers

.

17      On the view that resolution of the dispute before it depends on the interpretation of Directive 90/314, the

Landgericht

Hamburg decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Does Article 7 of [Directive 90/314] also apply where the travel

organiser

becomes insolvent because, from the beginning with fraudulent intent, it has used all the money collected from the

travellers

for an improper purpose and it was never intended that the trip would be

organised

?’Slide33

Package Travel

Consideration of the question referred

18      By its question, the national court is essentially asking whether Article 7 of Directive 90/314 is to be interpreted as covering a situation in which the insolvency of the travel

organiser

is attributable to its own fraudulent conduct.

19      In that regard, it should be borne in mind, first of all, that Article 7 of Directive 90/314 places the travel

organiser

under an obligation to hold sufficient security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency, the purpose of that security being to protect consumers against the financial risks arising from the insolvency of package travel

organisers

(see Joined Cases C‑178/94, C‑179/94 and C‑188/94 to C‑190/94

Dillenkofer

and Others

[1996] ECR I‑4845, paragraphs 34 and 35).

20      Thus, the fundamental objective of that provision is to ensure that the repatriation of the consumer and the refund of money paid over are guaranteed in the event of insolvency or bankruptcy on the part of a travel

organiser

(see, to that effect,

Dillenkofer

and Others

, paragraphs 35 and 36).

21      It is clear that the wording of Article 7 of Directive 90/314 does not attach to the guarantee any specific condition regarding the causes of the travel

organiser’s

insolvency. Slide34

Package Travel

In that connection, the Court has held, in paragraph 74 of its judgment in Case C‑140/97

Rechberger

and Others

[1999] ECR I‑3499, that Article 7 of Directive 90/314 imposes an obligation of result, that is to say, an obligation to guarantee package

travellers

the refund of money paid over and their repatriation in the event of the travel

organiser’s

bankruptcy, and that such a guarantee is specifically aimed at arming consumers against the consequences of the bankruptcy, whatever the causes of it may be.

23      The Court inferred from this that facts such as imprudent conduct on the part of the travel

organiser

or the occurrence of exceptional or unforeseeable events cannot constitute an obstacle to the refund of money paid over or to the repatriation of consumers under Article 7 of Directive 90/314 (see

Rechberger

and Others

, paragraphs 75 and 76).

24      Moreover, such an interpretation of Article 7 of Directive 90/314 is substantiated by the objective which that directive must pursue, which is to ensure a high level of protection for consumers (see

Dillenkofer

and Others

, paragraph 39).

25      In the light of the above considerations, the answer to the question referred is that Article 7 of Directive 90/314 is to be interpreted as covering a situation in which the insolvency of the travel

organiser

is attributable to its own fraudulent conduct. Slide35

Package Travel

Brussels

, 9.7.2013

COM(2013) 512

final

2013/0246 (COD)

Proposal

for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on package travel and assisted travel arrangements, amending Regulation (EC) No

2006/2004, Directive 2011/83/EU and repealing Council Directive 90/314/EECSlide36

Package Travel

1.2. Grounds for the proposal

1.2.1. Development of Internet distribution and

liberalisation

in the airline sector

73% of EU households had access to the Internet in 20119. Almost two-thirds of EU citizens

use the Internet at least once a week, more than half of them every day or almost every day.

Travel services are among the most popular products purchased on-line.

The development of online sales and the

liberalisation

in the airline sector have changed the

way in which consumers

organise

their holidays, having led to different ways in which traders

assist consumers in

customising

combinations of travel services, in particular online. The

relevant

traders

include

travel

agents

,

tour

operators

, airlines,

cruise

lines, etc.

There

is

ambiguity in many Member States as to whether such combinations fall under the scope of the

Directive and whether traders involved in putting together such combinations are liable for the

performance of the relevant services, especially in the online environment.

This is causing uncertainty for traders and consumers.Slide37

Package Travel

Unnecessary compliance costs and obstacles to cross-border trade

Some of the provisions of the Directive have become outdated or otherwise create

unnecessary burden for companies, such as information requirements for brochures and the

inclusion of managed business trips.

Legal fragmentation through numerous discrepancies in the laws of the Member States

generates additional costs for businesses wishing to trade cross-border.Slide38

Package Travel

1.2.3. Consumer detriment - unclear and outdated rules

The "Consumer Detriment Study in the area of Dynamic Packages"10 estimated the yearly

personal consumer detriment11 in relation to combined travel arrangements where the

applicability of the Directive is uncertain. The study showed that problems with such travel

arrangements are more frequent and more detrimental to consumers than problems related to

traditional packages which are clearly covered by the Directive.

To a certain extent also consumers who buy traditional pre-arranged packages suffer

detriment, because some provisions of the Directive are outdated, unclear or leave gaps, e.g.

the absence of a right for consumers to cancel the package before the departure.Slide39

Package Travel

2.2.

Impact

Assessment

The Impact Assessment (IA)

analysed

eight policy options plus certain sub-options.

Option 1 - Maintaining the status quo, i.e. maintaining the Directive in its present form

Option 2 – Guidelines, i.e. maintaining the Directive in its current form and preparing

guidelines, including CJEU rulings and clarification on the scope and liability

Option 3 - Package Travel Label and/ or requirement on traders selling assisted travel

arrangements to state that the services in question do not constitute a package (add-on

options

)

Sub-option A - introduction of a "Package Travel Label" – an obligatory logotype to be

presented to consumers when purchasing a package

Sub-option B - introduction of an obligation, for traders offering combined travel

arrangements which are not packages, to clarify that they are not selling a package

Option 4 - Repeal of the Directive and self-regulation by industry

Option 5 -

Modernisation

of the Directive and coverage of "one-trader packages"

Option 5 involves a legislative revision which would keep the main structure of the existing

Directive, while clarifying its scope through the explicit inclusion of "one-trader packages"

and revising several provisions. The revised Directive would apply to travel services which

are combined for the same trip or holiday on one website or at one high street agent.Slide40

Package Travel Directive

Option 6 – Graduated approach -

modernisation

of the Directive and coverage of both "

onetrader

"

and "multi-trader" packages while applying a lighter regime to "multi-trader" assisted

travel

arrangements

This option corresponds to Option 5 supplemented with a graduated extension of the scope of

the Directive aimed to cover:

- "multi-trader"

packages, i.e. combinations of travel services through different traders

showing certain features associated with packages, which would be subject to the same

regime as other packages (including full liability for the proper contractual performance and

the obligation to procure insolvency protection),

-"multi-trader"

assisted travel arrangements, i.e. those combinations of travel services which

do not display the typical features of packages and are hence less likely to mislead consumers.

They would be subject to a lighter regime consisting of insolvency protection and an

obligation to state in a clear and prominent manner that each individual service provider is

responsible for the correct performance of the services.

Option 7 –

Modernisation

of the Directive covering both "one-trader" packages and "

multitrader

"

travel

arrangements

This option includes Option 5 and 6, whilst subjecting all "multi-trader" assisted travel

arrangements to the same obligations as packages.

Option

8 – “

Travel

Directive

”

This option includes Option 7 plus an extension of the scope to stand-alone travel services,

e.g. car rental, accommodation or flights, containing in principle the same rules for all travel

services irrespective of whether they are part of a package or not.

The IA comes to the conclusion that the identified problems will be resolved most

appropriately by Option 6, which this proposal is based upon.Slide41

Package Travel

3.

LEGAL

ELEMENTS

OF THE PROPOSAL

3.1. Summary of the proposed action

The proposed Directive will clarify and

modernise

the scope of

travellers'

protection when

purchasing combinations of travel services for the same trip or holiday by bringing within its

scope different forms of on-line packages and assisted travel arrangements.

The proposal will ensure that

travellers

are better informed about the services they are buying

and grant them clearer remedies if something goes wrong.

At the same time, by reducing legal fragmentation and strengthening mutual recognition of

insolvency protection, the proposal will

minimise

obstacles to cross-border trade and reduce

compliance costs for traders wishing to operate cross-border, and ensure a level playing-field

in

the

travel

market.Slide42

Package Travel

4. EXPLANATION OF THE PROPOSAL

The proposal consists of 29 articles and two annexes (a table relating articles of Directive

90/314/EEC to articles of this proposal and the Legislative financial statement).

4.1.

Subject-matter

,

scope

and

definitions

(

Articles

1-3)

Article 1 sets out the subject-matter of the Directive. In conjunction with the definitions of

'package' and 'assisted travel arrangement' contained in Article 3, Article 2 determines its

scope, taking into account the different ways in which travel services can be combined.

Based on the way in which travel services are presented to the

traveller

, combinations which

meet any of the alternative criteria laid down in Article 3 (2) will be considered as packages

with the associated legal consequences for information requirements, liability and insolvency

protection

.

Combinations where retailers, through linked booking processes, facilitate the procurement of

additional travel services in a targeted manner or where the

traveller

concludes contracts with

the individual service providers and where the defining features of a package, e.g. an inclusive

or total price, are not present, are defined as 'assisted travel arrangements'. Retailers who are

in the business of facilitating the purchase of 'assisted travel arrangements' are subject to the

requirement to explain clearly to

travellers

that only the individual service providers are liable

for the performance of the travel services concerned. Furthermore, with a view to ensuring a

certain layer of additional, Union-wide protection compared to the one stemming from rules

on passenger rights or general consumer

acquis

also for

travellers

buying more than one travel

service through them, it is appropriate to provide that such retailers have to ensure that, in

case of their own insolvency or the insolvency of any of the service providers,

travellers

will

receive a refund of their pre-payments and, where relevant, will be repatriated.Slide43

Package Travel

Since it is not appropriate to grant the same level of protection to business

travellers

whose

travel arrangements are made on the basis of a framework contract concluded between their

employers and

specialised

operators often offering, on a business-to-business basis, a level of

protection similar to the one stemming from this Directive (so-called managed business

travel), such travel arrangements are excluded from the scope.

Other limitations of the scope are maintained, including for so-called occasionally

organised

packages

.

Apart from 'packages' and 'assisted travel arrangements' Article 3 defines other key terms of

the Directive, including '

traveller

', '

organiser

', 'retailer' and 'unavoidable and extraordinary

circumstances'. The '

organiser

' is defined as a trader who combines and sells/ offers for sale

packages, either directly or through/together with another trader.

Organisers

are liable for the

performance of the package (Articles 11 and 12), for providing assistance to the

traveller

(Article 14) and procuring insolvency protection (Article 15). Retailers and

organisers

are

both liable for providing pre-contractual information (Article 4). Retailers are liable for

booking errors (Article 19). Retailers facilitating the procurement of assisted travel

arrangements are obliged to procure insolvency protection (Article 15).Slide44

Package Travel

4.2. Information obligations, conclusion and content of the package travel contract

(

Articles

4 -6)

Article 4 lists specific pre-contractual information which

organisers

and, where applicable,

retailers have to provide to

travellers

wishing to buy a package. These requirements apply in

addition to information requirements under other applicable directives or regulations.

Article 5 regulates the conclusion of the package travel contract.

Article 6 contains provisions on the content and the presentation of the contract or its

confirmation as well as on documents and information to be provided before the start of the

package

.Slide45

Package Travel

4.3. Changes to the contract before the start of the package (Articles 7-10)

Similarly to Article 4 (3) of Directive 90/314/EEC, Article 7 lays down the conditions under

which the

traveller's

right to transfer the package to another person may be exercised.

Starting from the principle that agreed prices are binding, Article 8 lays down rules on the

possibility and consequences of price changes, given that package travel contracts are often

concluded a long time in advance. These rules are based on the same principles as Article 4

(4) – (6) of Directive 90/314/EEC.

Article 8 (2) maintains the right to impose price increases related to cost of fuel, taxes and

exchange rate fluctuations, but clarifies the conditions compared with Directive 90/314/EEC.

If an

organiser

reserves the right to price increases, it is now also obliged to grant

travellers

price reductions. Prices may not be increased by more than 10% of the price of the package.

With regard to changes other than price changes, distinct rules are set out for insignificant

(

Article

9(1)) and

significant

changes

(

Article

9 (2) and (3)).

Compared with Directive 90/314/EEC, Article 10 contains additional termination rights for

travellers

before the start of the package. The right for

travellers

to terminate the contract

against an appropriate compensation (Article 10 (1)) corresponds to rules and practices found

in the Member States. Article 10 (2) grants

travellers

the right to terminate the contract

without compensation in the event of unavoidable and extraordinary circumstances.Slide46

Package Travel

4.5. Insolvency protection (Articles 15 and 16)

Directive 90/314/EEC created a general obligation for 'the

organiser

and/or retailer' to provide

insolvency protection so as to ensure the repatriation of passengers and the refund of advance

payments in the event of insolvency. Due to different legal solutions chosen by the Member

States, this often led to duplication of costs for

organisers

and retailers. According to Article

15 of this proposal, only package

organisers

and retailers who facilitate the purchase of

'assisted travel arrangements' are subject to this obligation. At the same time, it lays down

more specific criteria on the effectiveness and the scope of the required protection.

To facilitate cross-border operations, Article 16 (1) explicitly provides for the mutual

recognition of insolvency protection procured under the law of the

organiser's

/relevant

retailer's Member State of establishment. To ensure administrative cooperation, Article 16

obliges Member States to designate central contact points.Slide47

Package Travel

4.6.

Information

requirements

for

assisted

travel

arrangements

(

Article

17)

To ensure legal certainty and transparency for the parties, retailers offering assisted travel

arrangements have to explain to

travellers

in a clear and prominent manner that only

the

relevant service providers are liable for performance of the services and that

travellers

will not

benefit from any of the Union rights granted to package

travellers

, except the right to a refund

of pre-payments and, where relevant, to repatriation in case the retailer itself or any of the

service

providers

becomes

insolvent

.Slide48

Package Travel

4.7. General

provisions

(

Articles

18 – 26)

Article 18 contains particular rules for packages where the

organiser

it established outside the

EEA.

Under Article 19, retailers involved in the booking of packages and assisted travel

arrangements are liable for booking errors.

Article 20 clarifies that this Directive does not affect the

organiser's

right to seek redress from

third

parties

.

Article 21 confirms the imperative nature of the Directive.

Article

22 on

enforcement

is

a standard

provision

in

the

consumer

acquis

.

Article 23 is a standard provision on penalties for infringements of the national provisions

transposing this Directive. Similar provisions can be found in the Consumer Rights Directive

(2011/83/EU) and in the Unfair Commercial Practices Directive (2005/29/EC).

Article 24 obliges the Commission to submit a report on the application of this Directive to

the European Parliament and the Council.

Article 25 (2) amends Directive 2011/83 on consumer rights to ensure that that Directive

applies fully to assisted travel arrangements and that certain general consumer rights apply

also

to

packages

.