Vacationers, tour operators & the law
Monika Tomczak-Górlikowska is an attorney with Miller Canfield W. Babicki & Partners.
"Member States shall take the necessary steps to ensure that the organiser... is liable to the consumer for the proper performance of the obligations arising from the Contract."
- Council Directive 90/314/EEC
on Package Tours.
The advertisements are enticing, a two week trip for two to the Mediterranean for the same price as you would pay to visit Łeba in August. No crowds, plenty of sun, a view of the sea and an all you-can-eat buffet open 24 hours a day! For the most part, travel packages are true bargains and provide real value. Tour operators are able to buy in bulk, thus negotiating lower prices, which they are then able to pass on to the consumer. But what happens if the trip does not turn out as expected? Help is on the way. Council Directive 90/314/EEC (I'll call it the Vacationers' Bill of Rights) is designed to harmonize the regulation of tour operators across the EU, in an effort to address the disparities in the degrees of protection afforded to consumers in different Member States.
The Vacationers' Bill of Rights requires member states, and very soon Poland too, to adopt legislation to ensure that tour operators are accountable for the proper performance of all package tours sold - regardless of who actually provides the individual services, including hotels, restaurants, airlines, etc. Sounds simple enough - if I spend too much time at the all-you-can eat buffet and become sick, the tour operator is responsible for compensating me for my illness. Right? The answer is not so simple. Let's take a look at a real court case, on this exact issue.
In 1997, an Austrian family, the Leitners, purchased a two-week holiday package to Turkey. After one week, the Leitner's ten-year-old daughter, Simone, fell sick from food poisoning (must have been the eggs - it's always the eggs) and the symptoms were, well, what you would expect. Needless to say, Simone and her parents did not enjoy the second half of their trip and, in fact, it took another week at home for Simone to recover fully. Despite their requests for compensation, the tour operator refused to reimburse the Leitners for their unhappy experience. The Leitners then filed a suit in an Austrian court, seeking damages from the tour operator.
The Austrian court ruled in favour of Simone, awarding her and her parents compensation for physical pain and suffering. But, the court refused to award any damages for the family's non-material loss, ie. the loss of enjoyment of their two-week holiday, declaring that Austrian law did not provide for the award of non-material damages. The Leitners, not content with the court's decision, appealed the decision to the Landesgericht Linz, the Austrian Court of Appeals. The Appeals Court, not sure how to interpret the Vacationers' Bill of Rights, sought guidance from the European Court of Justice (the "ECJ"), pursuant to Article 234 of the EC Treaty. The Austrian Appeals Court wanted to know whether the Vacationers' Bill of Rights should be interpreted to permit the award of compensation for non-material damages.
The ECJ heard arguments from the Leitners, the tour operator and several member states - who all supported the position of the tour operator. The tour operator argued that the Vacationers' Bill of Rights did not expressly provide for compensation for a non-material injury and, consequently, no such right should be inferred. Simone's lawyers countered that, as the Vacationers' Bill of Rights provided tour operators with the ability to contractually limit the amount of their liability for non-material damages, it thus acknowledged the existence of the principle of non-material damages. They argued that, if the tour operators are legally able to limit such liability for non-material damages, then how could they possibly argue that the entire concept of non-material damages does not exist? Clearly her lawyers were better than her food!
The EU Commission sided with Simone, adding that "it is not possible to interpret restrictively the general concept of damages used in the Directive and to exclude from it as a matter of principle non-material damages."
On December 3, 2002, the ECJ ruled in favour of Simone, declaring that the Vacationers' Bill of Rights is "to be interpreted as conferring, in principle, on consumers a right to compensation for non-material damages resulting from the non-performance or improper performance of the services constituting a holiday package." (Case C-168/00)
The ECJ ruling, in addition to helping little Simone, serves as an example of how EU law is applied in member states. Although a Directive cannot confer rights to individuals and is not directly applicable, national courts in member states have an obligation to interpret their respective laws "in light of the wording and the purpose of the directive so as to achieve the result it has in view" (ECJ Judgement C-355/96).
Poland has already implemented the Vacationers' Bill of Rights within the scope of the Act on Tourist Services. As such, the ECJ ruling in favour of Simone can be referred to when consumers bring similar actions for non-material damages against tour operators in Poland, especially following accession to the EU.
