Opinion of the Advocate General — ECLI:EU:C:1998:321
Date: 1998-06-25
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment 
1. Approximation of laws — Package travel, package holidays and package tours — 
Directive 90/314 — Article 7 concerning protection in the event of insolvency or 
bankruptcy on the part of the organiser — Scope — Trips offered as a gift, involving a 
financial contribution, to a predetermined class of consumers — Covered — Infringe­
ment of domestic competition law — Irrelevant 
(Council Directive 90/314, Art. 7) 
I - 3499 
SUMMARY — CASE C-140/97 
2. Approximation of laws — Package travel, package holidays and package tours — 
Directive 90/314 — Article 7 concerning protection in the event of insolvency or 
bankruptcy on the part of the organiser — Protection limited by a new Member State 
to trips departing no earlier than 1 May 1995 — Guarantee limited in terms of amount 
and calculation basis — Incorrect transposition into national law — Sufficiently 
serious breach of Community law — Direct causal link 
(Council Directive 90/314, Art. 7) 
1. Article 7 of Directive 90/314 on pack­
age travel, package holidays and pack­
age tours applies to trips which are 
offered by a daily newspaper as a gift 
exclusively to its subscribers as part of 
an advertising campaign that contra­
venes national competition law and for 
which the principal contractor, if he 
travels alone, pays airport taxes and a 
single-room supplement or, if accom­
panied by one or more persons paying 
the full rate, airport taxes only. 
First, Article 7 applies even if the 
consideration which the purchaser is 
required to pay does not correspond to 
the total value of the package or relates 
only to a single component of it. 
Secondly, there is no basis in the text 
of the Directive for limiting its scope to 
packages offered to a potentially 
unlimited number of consumers and it 
would be contrary to the purpose of the 
Directive to do so. Lastly, the fact that 
an advertising campaign consisting in 
the offer of free trips by a daily news­
paper has been found to be incompa­
tible with national competition law 
cannot prevent those trips from consti­
tuting package travel within the mean­
ing of the Directive. 
2. A Member State which acceded to the 
European Union on 1 January 1995, 
and which should have implemented 
Directive 90/314 on package travel, 
package holidays and package tours by 
that date at the latest, has not properly 
transposed Article 7 of the Directive 
(concerning protection in the event of 
insolvency or bankruptcy on the part of 
the organiser) if it has adopted legisla­
tion which protects travellers who have 
booked package travel after 1 January 
1995 but limits that protection to trips 
with a departure date of 1 May 1995 
or later. The security prescribed by 
Article 7 of the Directive must cover 
all contracts for package travel entered 
into from 1 January 1995 onwards. 
Nor is Article 7 correctly transposed 
into national law where national legis­
lation does no more than require, for 
the coverage of the risk, a contract of 
insurance or a bank guarantee under 
which the amount of cover provided 
must be no less than 5% of the 
organiser's turnover during the corre­
sponding quarter of the previous calen­
dar year, and which requires an orga­
niser just starting up in business to base 
the amount of cover on his estimated 
turnover from his intended business as 
a travel organiser and does not take 
account of any increase in the organi­
ser's turnover in the current year. Such 
I - 3500 
RECHBERGER AND OTHERS 
a system therefore appears structurally 
incapable of catering for events in the 
economic sector in question and cannot 
provide the consumer with an effective 
guarantee of the refund of all money 
paid over and his repatriation in the 
event of the travel organiser's insol­
vency. 
Limitation of the protection under 
Article 7 to package travel with a 
departure date of 1 May 1995 or later 
is manifestly incompatible with the 
obligations under the Directive and 
therefore constitutes a sufficiently 
serious breach of Community law, even 
where the Member State has imple­
mented all the other provisions of the 
Directive. Moreover, once a direct 
causal link has been established, a 
Member State's liability for breach of 
Article 7 of Directive 90/314 cannot be 
precluded by imprudent conduct on the 
part of the travel organiser or by the 
occurrence of exceptional or unforesee­
able events, since such circumstances 
are not such as to preclude the exis­
tence of a direct causal link. 
I - 3501