Provisional text
OPINION OF ADVOCATE GENERAL
NORKUS
delivered on 4 September 2025 (1)
Case C‑629/24
MH,
Costa Crociere SpA
v
Costa Crociere SpA,
Axyme Selàrl,
Generali IARD SA,
Hiscox Insurance Company Ltd,
Caisse primaire d’assurance maladie (CPAM) de Paris,
DI,
DM,
WT,
Croisière Club SAS,
Hiscox SA,
Caisse primaire d’assurance maladie (CPAM) du Puy-De-Dôme
(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))
( Reference for a preliminary ruling – Regulation (EC) No 392/2009 – Liability of carriers of passengers by sea – Article 2 – Scope – Article 3(1) – Liability of carriers referred to in the Athens Convention – First paragraph of Article 7 – Information for passengers – Directive 90/314/EEC – Package travel, holidays and tours – Article 5 – Liability of the organiser – Cruise – Accident – Bodily injury suffered by a passenger )
I.      Introduction
1.        This request for a preliminary ruling from the Cour de cassation (Court of Cassation, France) under Article 267 TFEU concerns the interpretation
of Article 2, Article 3(1), and the first paragraph of Article 7 of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents, (2) in circumstances where a maritime carrier operates a cruise that constitutes a ‘package
holiday’ within the meaning of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. (3)
2.        The request was made in the context of two joint-liability actions brought by travellers against travel agencies, a maritime carrier and insurance companies following bodily injuries sustained by those travellers during cruises operated by the carrier and sold to them as a package by the travel agencies.
The main legal question arising in both cases is which of the aforementioned acts of EU law can the applicants invoke in support of their claims for damages. Depending on their respective interests, each party to the proceedings relies on either one of the legal acts and rejects the applicability of the other. It will therefore be necessary to examine the relationship between the aforementioned legal acts and whether they may apply concurrently in cases where a sea cruise has the characteristics of package travel.
3.        This raises complex issues regarding the delimitation of the scopes of application
of the two acts, which have so far been assessed differently by national courts and therefore require clarification by the Court of Justice. This legal question is of considerable practical importance as the liability regimes established by the two acts of EU law at issue pursue different objectives, make claims dependent on the satisfaction of different conditions, partly cover different types of damages and, thus, ultimately differ in the scope of protection they offer. The
interpretation of those acts of EU law
requires particular attention in order to ensure comprehensive consumer protection as well as coherence and unity within the EU’s legal order.
II.    Legal framework
A.      European Union law
4.        In the context of the present cases, Articles 1, 2 and 5 of Directive 90/314, Articles 1, 2, 3
and 7 of Regulation No 392/2009 as well as Articles 1, 3, 7 and 14 of its Annex I,
Article 3 of Regulation (EU)
No 1177/2010 (4) and Articles 3 and 14 of Directive 2015/2302/EU (5) are relevant.
B.      French law
5.        Directive
90/314 was transposed into national law by
loi n° 92-645 du 13 juillet 1992 (Law
No 92-645 of 13 July
1992), (6) the provisions of which were subsequently codified in the Code du tourisme (Tourism Code). The version of the relevant articles of that code is that resulting from
loi n° 2009-888 du 22 juillet 2009 (Law
No 2009-888 of 22 July
2009). (7) The
articles provide as follows:
–      Article L. 211‑1:
‘I.– This Chapter shall apply to natural or legal persons engaged or assisting, whatever the terms of their remuneration may be, in operations consisting of the organisation or sale of:
(a)      individual or group travel or holidays;
(b)      services which may be provided in connection with travel or holidays, including the issue of tickets, the booking of rooms in hotel establishments or tourist accommodation and the issue of accommodation or catering vouchers;
…’
–      Article L. 211‑2:
‘The following constitute a package holiday:
1.      services resulting from the pre-arranged combination of not fewer than two operations relating, respectively, to transport, accommodation or other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package;
2.      services covering a period of more than twenty-four hours or including overnight accommodation;
3.      services sold or offered for sale at an inclusive price.’
–      Article L. 211‑16:
‘Any natural or legal person engaging in the operations referred to in Article L. 211‑1 shall be automatically liable to the purchaser for the proper performance of the obligations arising from the contract, irrespective of whether that contract was concluded at a distance and whether such obligations are to be performed by itself or by other suppliers of services, without prejudice to its right of recourse against the latter and within the limits of the compensation provided for by international conventions.
However, it may exonerate itself from all or part of its liability by proving that the failure to perform or the improper performance of the contract is attributable either to the purchaser, or to the unforeseeable and unavoidable act of a third party unconnected with the provision of the services contracted for or to force majeure.’
III. The facts giving rise to the dispute in the main proceedings and the questions referred for a preliminary ruling
6.        On 11 February 2016, DM purchased a package holiday from the travel agency Croisière Club SAS for himself and his wife, DI, for the price of EUR 1 782. The package consisted of a cruise aboard a ship operated by Costa Crociere SpA from Marseille (France) to the Greek islands, with five stops along the way,
scheduled for the period from 30 March to 11 April 2016.
7.        On 30 March 2016, DI fell and fractured her left humeral head after being struck by an unidentified person while she was trying to serve herself at the buffet on board the ship, which was still docked in the port of Marseille. As a result, DI and DM did not participate in the cruise and brought an action for damages against Costa Crociere and Croisière Club. Hiscox Insurance Company Ltd (‘Hiscox’), Croisière Club’s insurer, voluntarily joined the proceedings.
8.        On 22 October 2020, the tribunal judiciaire de Nanterre (Court of Nanterre,
France) found both Costa Crociere and Croisière Club liable for the damage caused and ordered those companies, along with Hiscox, to pay various amounts to DI and DM in compensation. Costa Crociere, Croisière Club and Hiscox appealed that decision.
9.        By a ruling dated 14 February 2023, the cour d’appel de Versailles (Court of Appeal, Versailles, France) ordered Costa Crociere and Croisière Club to compensate DI and DM for the damage suffered, in application of Article L. 211-1 et seq. of the Tourism Code transposing Directive 90/314. On the same basis, the court ordered Hiscox to release and indemnify Croisière Club in respect of the judgments
rendered
against it, and it further ordered Costa Crociere to release and indemnify
both Croisière Club and Hiscox in respect of the judgments
rendered against them.
10.      In its appeal on a point of law brought before the Cour de cassation (Court of Cassation, France),
Costa Crociere submitted that the cour d’appel de Versailles (Court of Appeal, Versailles)
erred in refusing to apply Regulation No 392/2009 and the Athens Convention, (8) and in ruling that it was liable for the damage suffered by DI and DM under Article L. 211-1 et seq. of the Tourism Code.
11.      On 18 January 2017, MH booked a cruise aboard a ship operated by Costa Crociere through the travel agency Blue Passion for the price of EUR 12 038, which was to take her from Valparaiso (Chile) to Melbourne (Australia) over the period from
15 February to
17 March 2017. During the night of 17 to 18 February 2017, she got out of bed without turning on the light, fell, and fractured the head of her humerus. She was subsequently repatriated to mainland France for medical treatment.
12.      In July 2017, MH brought an action for damages against Blue Passion and Costa Crociere. Hiscox, the insurer of those companies, voluntarily joined the proceedings.
13.      By a judgment dated 24 October 2019, the tribunal de grande instance de Paris (Regional Court, Paris, France) found Blue Passion and Costa Crociere to be 20% liable for the damage suffered by MH as a result of her fall. That court found MH to be partly responsible because she had not turned on the light. That court ordered Blue Passion and Costa Crociere, jointly with Hiscox, to compensate MH for damages in the amount of EUR 2 041.53, under Article L. 211-2 et seq. of the Tourism Code.
14.      On 22 September 2020, Blue Passion was put into judicial liquidation.
15.      On appeal, the cour d’appel de Paris (Court of Appeal, Paris, France), in its judgment of 17 November 2022, found MH to be solely responsible for her accident due to her failure to turn on the light. Therefore, Blue Passion could not be held liable for improper performance of the contract under Article L. 211-1 et seq. of the Tourism Code. Additionally, that court held that Costa Crociere could not be held liable for the accident under Regulation No 392/2009 and the Athens Convention, since there was no evidence of any ship movements or failures by Costa Crociere that could have caused the fall. Accordingly, the cour d’appel de Paris (Court of Appeal, Paris) declared MH’s claims, and all third-party claims against Blue Passion in liquidation, inadmissible, overturned the judgment that had held Costa Crociere and Blue Passion liable, and dismissed MH’s claims against Costa Crociere and Hiscox.
16.      MH brought an appeal on a point of law before the Cour de cassation (Court of Cassation), in which she submitted that the
cour d’appel de Paris
(Court of Appeal, Paris)
had
erred in refusing to apply Article L. 211-2 and Article L. 211-16 of the Tourism Code transposing Directive 90/314, and in applying Regulation No 392/2009 and the Athens Convention, instead.
17.      Hearing the two appeals on a point of law, the Cour de cassation (Court of Cassation), which is the referring court, noted that both
courts of appeal and legal scholars alike are divided on the issue of whether Regulation No 392/2009 applies to maritime cruise operators offering packages that qualify as package travel within the meaning of Directive 90/314.
18.      On the one hand, it has been argued that the liability of
organisers of maritime cruises
sold
as package tours falls under the liability regime established by Directive 90/314. Indeed, Regulation No 392/2009 does not provide an exception to the strict liability regime of the organiser or retailer established by that directive, thereby ensuring better consumer protection. Moreover, Regulation No 392/2009 only applies to contracts relating solely to maritime passenger transport, and the reference made to Directive 90/314 in Article 7 of that regulation is limited to the organiser’s obligations to inform passengers, and does not concern the liability regime arising under that directive.
19.      On the other hand, according to the referring court, it has been argued that the liability of organisers of cruises sold as package holidays falls within the liability regime of Regulation No 392/2009 because,
under Article 14 of the Athens Convention, to which Article 3 of that regulation refers, no action for liability in the event of death or personal injury to a passenger or for loss or damage to luggage may be brought against the carrier or performing carrier except under that convention. Furthermore, no provision of that regulation excludes cruises from its scope. Moreover, Article 7 of that regulation refers to Directive 90/314.
20.      Furthermore, the referring court explains that some authors suggest that a distinction should be made depending on whether the passenger’s accident during a cruise relates to the transport operation itself – in which case the carrier’s liability falls under the Athens Convention – or to a tourist service provided in connection with that transport – in which case Directive 90/314 applies.
21.      In
the light of those considerations, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Must Article 2, Article 3(1) and the first paragraph of Article 7 of Regulation [No 392/2009], and Annex I thereto, be interpreted as governing the liability of a maritime carrier operating a cruise having the characteristics of a package holiday within the meaning of [Directive 90/314]?
(2)      If the answer to the first question is in the affirmative, do those provisions of [Regulation No 392/2009] govern the liability of that operator only where the personal injury relates to carriage by sea?’
IV.    The procedure before the Court
22.      The order for reference dated 15 May
2024 was received at the Registry of the Court of Justice on 25 September
2024.
23.      Written observations were submitted by DM and WT, in their capacity as heirs of DI, by MH, by Costa Crociere, by Croisière Club and its insurer Hiscox, by Hiscox in its capacity as the insurer of Blue Passion in judicial liquidation, by the French Government and by the European Commission
within the period prescribed in Article 23 of the Statute of the Court of Justice of the European Union.
24.      In accordance with Article 76(2) of the Rules of Procedure
of the Court of Justice, the Court decided to proceed without a hearing.
V.      Legal analysis
A.      Preliminary remarks
25.      Cruise trips are popular because they offer a convenient, all-in-one holiday experience that includes travel, lodging, food and entertainment. Travellers can visit multiple destinations without having to unpack
several times, they can
enjoy a wide range of on-board activities and they
often get good value for money. Cruises appeal to a variety of people thanks to their relaxing atmosphere, the many social opportunities
they provide, and the
ease with which they are
organised. From a legal perspective, contracts for cruises have the particular characteristic that, in addition to the element of transportation, they also include elements of other services, such as leisure activities.
26.      EU law acknowledges that fact in the
definition of
a ‘cruise’ under Article 3 of Regulation No 1177/2010 as
‘a transport service by sea or inland waterway, operated exclusively for the purpose of pleasure or recreation, supplemented by accommodation and other facilities, exceeding two overnight stays on board’. As a result, some aspects of the contract concluded by the passenger
may fall within the scope of several different acts of EU law. In the event of non-performance or improper performance of the agreed service, complex questions may arise regarding the delimitation of the
scope of application of those acts.
27.      In the present cases, which concern bodily injuries sustained by two passengers during cruise trips in 2016 and 2017, the question arises as to how to delineate the scope of application of the two relevant acts of EU law, namely Directive 90/314 and Regulation No 392/2009. Each of those legal instruments establishes a separate liability regime – that of the organiser in the first case, and that of the carrier in the second – as I will explain in more detail. Since Regulation No 392/2009 fully incorporates the Athens Convention into the
EU legal order, the origins and purpose of that convention are of considerable importance to this analysis. The London Protocol, (9) which amended the Athens Convention and to which the European Union has acceded, is also relevant. However, it must be noted that Directive 2015/2302, which has since replaced Directive 90/314, is not applicable to the present cases ratione
temporis, as it only became applicable on 1 July 2018.
28.      Having summarised the subject matter of both of the questions referred, it is
clearly appropriate to address them together. The central objective of the analysis is to ascertain the criteria for delineating the scope of application of the two liability regimes, thereby enhancing legal clarity regarding their respective scopes. To that end, I will compare both regimes and highlight their essential features. (10) By means of interpretation, I will determine the extent to which the acts of EU law in question cover aspects of transport and other services. In doing so, I will examine whether it may be necessary to distinguish between different types of services, given that some of the services provided on a cruise trip
may have little or even no connection to the area of transport.
Finally, I will propose certain interpretative criteria that are designed to assist the referring court in identifying the applicable liability regime in the specific context of the cases before it. (11)
B.      Presentation of the liability regimes applicable to the carriage of passengers by sea and their interaction
1.      Overview of the essential features of both liability regimes
29.      Article 3(1) of Regulation No 392/2009 provides that the liability regime applicable to maritime carriers for damage caused to passengers of a ship is governed by Articles 1 and 1bis, Article 2(2) and Articles 3 to 16, 18, 20 and 21 of the Athens Convention. As previously stated, that
convention has become an integral part of the EU’s legal order through the adoption of that regulation. (12)
30.      The liability regime established by the Athens Convention provides that, in the case of damage resulting from the death or bodily injury of a passenger not caused by a shipping incident, the carrier is liable if the event giving rise to the damage is attributable to the fault or neglect of the carrier, and the burden of proving the fault or negligence then lies with the claimant. (13)
31.      Article 14 of the Athens Convention makes it clear that a claim in the circumstances mentioned above may only be brought on the basis of that convention. It can therefore be inferred that Regulation No 392/2009 constitutes a specific legal basis for claims against the carrier in cases of death or personal injury in maritime transport.
32.      In
that context, reference should be made to recital 19 of Regulation No 392/2009, which indicates that the objective of that
regulation is to establish uniform rules
(‘a single set of rules’) (14) at EU level concerning the rights of carriers by sea, as well as the rights of passengers in the event of accidents, since that objective cannot be sufficiently achieved at Member State level. That indication reinforces my view that Regulation No 392/2009 constitutes a legal framework governing a clearly defined subject matter, to the exclusion of any potentially conflicting rules, as far as the area of transport of passengers by sea is concerned. (15)
33.      As regards the scope of Regulation No 392/2009 in particular, Article 3(6) of the Athens Convention annexed thereto specifies that the liability of the carrier only relates to loss arising from incidents that ‘occurred in the course of the carriage’. In other words, that provision defines a period or process during which the carrier’s liability applies, the specific implications of which
are determined by other provisions of that regulation.
34.      In that regard, pursuant to Article 2 thereof, Regulation No 392/2009 applies to any ‘international carriage’ within the meaning of Article 1(9) of the Athens Convention, which defines that term as ‘any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated in two different States, or in a single State if, according to the contract of carriage or the scheduled itinerary, there is an intermediate port of call in another State’.
35.      Moreover, Article 1(8)(a) of the Athens Convention specifies that ‘carriage’ covers the period during which the passenger and/or his or her cabin luggage are on board the ship, or in the course of embarkation or disembarkation, as well as the period during which the passenger and his or her cabin luggage are transported by water from land to the ship or vice versa, if the cost of such transport is included in the fare or if the vessel used for this additional transport has been made available to the passenger by the carrier. However, ‘carriage’ does not cover the period during which the passenger is in a port terminal, on a quay, or in or on any other port installation.
36.      In view of the above considerations, and given the fact that a cruise primarily – though not exclusively – involves the transport of passengers by sea, it is reasonable to consider that any bodily injuries sustained by passengers as a result of accidents occurring during the course of their transport on board may fall within the scope of Regulation No 392/2009.
In contrast, bodily injuries that occur when the passenger is not on board the ship are not covered by that regulation.
37.      The question then arises
as to whether Directive 90/314 might also apply in those circumstances. If that were the case, it would mean that in certain cases there would be an overlap in their scopes of application. Article 7 of Regulation No 392/2009 provides certain indications as to the answer to this question. According to that provision, the carrier and/or the performing carrier, without prejudice to the obligations of tour operators under Directive 90/314, shall ensure that passengers receive appropriate and comprehensible information about their rights under that
regulation at the time of departure.
38.      That provision shows that the EU legislature adopted Regulation No 392/2009 in full awareness of the possibility that maritime transport could be included in a package travel arrangement governed under Directive 90/314. It also demonstrates that the rights granted under Regulation No 392/2009, particularly within the framework of the liability regime for maritime carriers towards passengers established by that regulation, must be communicated to them, and that those rights may therefore also apply in the context of package travel.
39.      That
duty of maritime carriers to inform
passengers about their rights under Regulation No 392/2009 is ‘without prejudice’ to the rights that passengers may have under Directive 90/314 with regard to tour operators. However, it is important to note that the term ‘without prejudice’ does not aim to exclude or limit the application of Regulation No 392/2009 to the liability regime of the maritime carrier in the event of death or personal injury to the passenger.
Instead, it is obvious that that liability regime remains
specifically applicable in the event of death or personal injury to the passenger during maritime transport, under a provision of an international convention that is an integral part of EU law.
40.      The liability regime under Directive 90/314, in turn, concerns the liability of the organiser for breach of his or her contractual obligations towards the consumer.
More specifically, pursuant to Article 5(1) of that directive, the organiser is liable to the consumer for the proper performance of the obligations arising from the package contract, regardless of whether those obligations are to be carried out by the organiser itself or by third-party service providers – such as, in the case of a cruise, the carrier. (16) Notably, that directive also provides for compensation in cases of bodily injury arising from the non-performance or improper performance of the services contractually agreed upon, as can be deduced from Article 5(2) thereof. (17)
41.      It can therefore be stated, for the purposes of this
analysis, that the two liability regimes differ both in their regulatory purposes and in their legal bases.
Consequently, in the event of accidents involving passengers on board a cruise ship, they may apply concurrently. From that perspective, it cannot be ruled out that the scope of application of
Regulation No 392/2009 and that of Directive 90/314 may overlap in certain circumstances.
Having said that, it should be emphasised that those legal acts do not apply in the same way.
Indeed, they pursue different objectives and regulate different aspects of the same travel situation. (18)
42.      For that reason, any claims a passenger may have are directed against different parties, namely the carrier and/or the organiser. Those parties may be the same or different
economic operators.
In view of the distinct functions those parties fulfil in the performance of a cruise trip, it is reasonable to assume that each may
be held liable solely for breaches of their own obligations toward the passenger.
43.      Accordingly, the carrier typically bears liability for bodily injury sustained on board the ship, with the conditions for establishing such liability varying depending on whether the relevant harm resulted from a ‘shipping incident’ within the meaning of the Athens Convention. The organiser, by contrast, is responsible for ensuring the proper performance of the package travel contract and is therefore also liable for any deficiencies attributable to the carrier’s conduct. Moreover, as follows from the definition of a ‘package’
under Article 2(1) of Directive 90/314, ‘transport’ is generally considered
to be
one of its integral components.
44.      In that context, it is worth noting that Article 4(1)(b) of Directive 90/314 imposes specific obligations on the organiser to provide the consumer, prior to the commencement of the journey, with certain information – including the times and locations of intermediate stops and transport connections, as well as details concerning the accommodation to be occupied by the traveller, such as a cabin or berth on a ship. In other words, the scope of Directive 90/314 encompasses,
to some extent, the carriage of passengers by sea as well.
45.      As a result, the passenger is, in principle, presented with a choice between two distinct avenues of redress.
However, it is worth stressing that that does not relieve him or her of the obligation to carefully assess, in each case, the applicability and satisfaction of the requirements of Regulation No 392/2009 and Directive 90/314 in the
light of the specific circumstances of the individual case. (19)
46.      If both liability regimes
are intended to apply concurrently, the further question arises as to how legal consistency can be ensured. An interpretation of Directive 90/314 illustrates that the EU legislature had already taken into account the possible applicability of the Athens Convention at a time when it had not yet been included in
Regulation No 392/2009 and had not yet become part of the EU legal order. In fact, the third paragraph of Article 5(2) of Directive 90/314 provides that ‘in the matter of damages
arising from the non-performance or improper performance of the services involved in the package, Member States may allow compensation to be limited in accordance with the international conventions governing such services.’
The nineteenth recital of Directive 90/314 refers in that regard to the
‘Athens Convention of 1974 on Carriage by Sea’
in particular.
47.      Although not applicable ratione temporis to the present cases, Directive 2015/2302, which replaced Directive 90/314, should also be taken into account in the interpretation
at hand. Article 14(4) of Directive 2015/2302
clarifies the relationship between the rules applicable to package travel and the international conventions applicable to travel services and, specifically,
the rules under the Athens Convention. According to that provision, ‘in
so
far as international conventions binding the Union limit the extent of or the conditions under which compensation is to be paid by a provider carrying out a travel service which is part of a package, the same limitations shall apply to the organiser.’ The regulatory objective of this provision is to ensure fairness and legal consistency, so that organisers are not held to a higher standard than the service provider itself under international law.
48.      Furthermore, reference must be made to Article 14(5) of Directive 2015/2302, which provides that the right to compensation under that directive does not affect travellers’ rights under Regulation No 392/2009, albeit with the limitation that compensation granted under that directive and compensation granted under that regulation
are to be deducted from each other in order to avoid overcompensation. That provision lends support to my observation that the two liability regimes are interconnected. They are designed to coexist and, in principle, be available to passengers simultaneously, ensuring comprehensive protection
for passengers, without limiting them to a single avenue of redress. However, that concurrent applicability is explicitly restricted by the EU legislature
in order to prevent the passenger from receiving overcompensation for the same incident from multiple liable parties.
2.      Parallels with the area of air passenger transport
49.      I will now supplement that general overview with a brief excursus into the liability regime applicable to the transport of passengers by air, from which pertinent legal conclusions may be drawn for the present analysis, given that both the
EU legislature and the Court have provided some
clarifications regarding the material scope of the applicable rules.
50.      Thus, in the judgment in Irish Ferries, (20) the Court established the basis for interpreting the provisions on the carriage of passengers by sea in a manner analogous to those governing air transport. The analogy developed by the Court concerned the possible financial pressure on maritime carriers due to the compensation measures provided under Article 19 of Regulation No 1177/2010, stating that it had already held in the field of air transport that such consequences could not be regarded as disproportionate in the light of the objective of a high level of protection for passengers.
51.      In the judgment in Primera Air Scandinavia, (21) the Court considered the interaction between the rules on the transport of passengers by air and the rules on travel packages and
held that the right to compensation provided under Article 7 of Regulation (EC) No 261/2004 (22) was applicable in a situation where the flight purchased by a passenger was part of a package tour, without affecting any rights which may arise under Directive 90/314.
52.      In the judgment in
Hembesler and Condor Flugdienst, (23) the Court confirmed the possibility of a combined application of the rules contained in both Directive 2015/2302 and Regulation No 261/2004 to air passengers in connection with a package tour. In the Court’s view, the legal protection of those passengers could not be guaranteed exclusively by
that directive. Following an interpretation of Article 3(6) of Regulation No 261/2004 and Article 14(5) of Directive 2015/2302, the Court concluded that the respective scopes of those acts of secondary legislation
may overlap. However, the Court noted that those provisions set as a limit to their combined application the refusal to overcompensate the harm suffered by the passenger.
53.      The aforementioned judgments demonstrate that, within the area of air passenger transport, the parallel application of two distinct liability regimes is permissible, in so far as it serves to ensure the comprehensive protection of passengers. However, given that those regimes operate through different legal mechanisms and are directed at different categories of liable parties, the relevant instruments of EU law contain specific provisions that delineate their respective scopes of application. (24) The absence of detailed provisions regarding the carriage of passengers by sea – which is
at issue in the present cases –
combined with the fact that the Court has not yet addressed the demarcation of the material scope of
those rules in relation to the rules on package travel, calls for a clarification through interpretative means. I will address that task in the following section.
C.      The need for a coherent and interest-oriented interpretation of the rules governing the carriage of passengers by sea
54.      The fact that both liability regimes may apply in parallel should not obscure the reality that the transport element in cruise contracts constitutes only a relatively small part of the overall package offered by the organiser, whereas other services – such as entertainment, accommodation and catering – are clearly predominant. This also reflects consumer demand: cruise passengers typically seek to be entertained while exploring new regions of the world. If, on the other hand, the main interest were in transport, there would certainly be faster and more cost-effective alternatives to cruises. Accordingly, in practice, the scope of Directive 90/314 is significantly broader than that of Regulation No 392/2009, which is limited to issues of liability related to the injury or death of passengers during their carriage.
55.      Moreover, it should not be overlooked that the EU legislature has progressively modernised consumer protection law, and in particular the law on package travel, in order to respond to the growing demand from travellers for cruise trips. Whereas cruises were not explicitly mentioned in Directive 90/314, recital 17 of Directive 2015/2302 now expressly refers to them and characterises them, in essence, as a combination of multiple services in which the transport component plays a subordinate role.
56.      The Court’s case-law appears to reflect the increasing significance of package travel law in ensuring the protection of passengers. In the judgment in Pammer and Hotel Alpenhof, (25) the Court considered that the conditions for a voyage by freighter to qualify as a ‘package’ within the meaning of Article 2(1) of Directive 90/314 were met despite the fact that the voyage in question took place under much simpler conditions than those of a traditional cruise. The transport aspect was taken into account only in so far as it constituted a necessary component of package travel. By doing so, the Court effectively brought that category of sea transport within the scope of consumer protection law. A fortiori, that reasoning should also apply to more complex or sophisticated forms of cruise travel.
57.      In my view, those aspects should be taken into account when determining which of the instruments of
EU law in fact applies. Issues of delineation between the scope of Regulation No 392/2009 and Directive 90/314 are likely to arise, in particular, where breaches of duty result in bodily injury to the passenger – whether such injury occurs in the context of the transport itself or in connection with other services. In determining the boundaries of the respective scopes of application of those acts of EU law, it should, on the one hand, be borne in mind that Directive 90/314 contains provisions that are highly favourable to the consumer. (26) Therefore, the provisions of Directive 90/314 should, in the consumer’s interest, be applied as broadly as possible. On the other hand, Regulation No 392/2009 must not be deprived of its intended purpose. It should rather be applied in line with its original objective, namely to ensure compensation for bodily injuries that are closely linked to the transport operation. (27)
58.      Contrary to the argument advanced by some of the parties, I do not subscribe to the view that Regulation No 392/2009 entirely displaces the provisions of Directive 90/314 in all circumstances. That argument relies on the assumption that Article 14 of the Athens Convention establishes the exclusive application of the Convention’s provisions. However, that interpretation fails to acknowledge that the primary
objective of that provision is to preclude the application of conflicting national legislation in the area of transport law. The signatory states of the Athens Convention agreed upon an international treaty aimed at establishing uniform liability rules. (28) That objective is clearly reflected in both the Convention itself and in
Regulation No 392/2009. In particular, the previously mentioned recital 19 of that regulation refers to the creation of ‘a single set of rules’, while Annex II to the Convention emphasises the ‘aim to ensure uniformity’ in its application.
59.      In any event, it should be borne in mind that Article 14 of the Convention predates Directive 90/314 and stems from a time when cruise travel organised by tour operators was not yet
widespread. Consequently, those legal relationships between tour operators and consumers were not contemplated at the time. The legislature’s attention was directed principally at the legal relationship between carriers and passengers in the context of maritime transport. However, the evolving nature of travel law and
the increasing popularity of cruise tourism
are
developments
that should be reflected in the interpretation of the applicable legal framework.
60.      I likewise do not concur with the argument advanced by those parties which advocate for the exclusive application of Directive 90/314 to the complete exclusion of the provisions of Regulation No 392/2009. In my view, that interpretation fails to take into account the fact that, as evidenced from a systematic interpretation, the EU legislature clearly intended Regulation No 392/2009 to remain fully applicable, irrespective of the evolution of consumer protection law. That legal instrument therefore retains its relevance, particularly with respect to the liability of the carrier for bodily injuries attributable to the transport operation.
61.      That interpretation also serves the interests of the consumer, as it cannot be ruled out that certain circumstances may arise which cannot readily be classified as breaches of contract by the tour operator, but rather stem from conditions related to the operation of the vessel and therefore fall within the carrier’s sphere of responsibility. Consequently, it cannot be excluded that, in such circumstances, a consumer could find himself or herself in the difficult position of having to prove that the conditions for finding the tour operator liable have been met. By contrast, it would likely be considerably more straightforward for a passenger to assert a claim against the carrier under the framework of Regulation No 392/2009.
62.      Accordingly, Regulation No 392/2009 and Directive 90/314 should be regarded as capable of coexisting and being applied in parallel, where appropriate and contextually justified.
In my view, that interpretation is appropriate in order to guarantee the passenger the broadest possible and most comprehensive protection under the law.
63.      Having said that, legal certainty – and in particular, foreseeability in commercial relations – as well as the protection of all those consumers who benefit from cruise services require the development of reliable and readily applicable criteria for determining the applicable legal regime. (29) The following section is devoted to addressing that aspect.
D.      Criteria for delineating the respective scopes of application of Regulation No 392/2009 and Directive 90/314
64.      Based on the foregoing considerations, it is possible to identify certain criteria which allow for the delineation of the respective scopes of application of Regulation No 392/2009 and Directive 90/314.
To better illustrate those criteria, I will, where possible, refer to examples of relevant cases.
1.      Criteria for the application of Regulation No 392/2009
65.      With regard to the criteria which, if fulfilled,
indicate the applicability of Regulation No 392/2009, it should be noted that, as previously established, any bodily injury sustained by passengers as a result of accidents occurring during the course of carriage on board falls within the scope of that
regulation.
Conversely, injuries sustained while the passenger is in a port terminal, on a quay, or in or on any other port installation are not covered by that regulation. (30) It logically follows that the passenger will not be able to assert any liability claims under that regulation if, for example, he
or she suffers bodily injury during an excursion on land. (31)
66.      Furthermore, it must be noted that under Article 3(1) of the Athens Convention the carrier is liable for loss suffered as a result of personal injury to a passenger caused by a ‘shipping incident’. The legal definition in Article 3(5) of the Convention specifies that that term includes shipwreck, capsizing, collision or stranding of the ship, explosion or fire on the ship, or a defect in the ship. The liability applies unless the carrier proves that the incident
resulted from an act of war, hostilities, civil war, insurrection or a natural phenomenon of an exceptional, inevitable and irresistible character, or
was wholly caused by an act or omission done with the intent to cause the incident by a third party. Since the circumstances giving rise to a liability claim are clearly defined in the Convention itself, there will generally be little difficulty in determining whether the passenger has a claim against the carrier.
67.      However, the clarification of this issue becomes more complex when the bodily injury does not result from one of the aforementioned ‘shipping incidents’. In such a case, Article 3 of the Athens Convention provides that the carrier is to be liable if the incident causing the loss was due to the fault or neglect of the carrier. The burden of proving such fault or neglect rests with the claimant.
68.      In the
light of the above, it is reasonable to conclude that the incidents in question must constitute events in which a risk typically associated with the carriage of passengers by sea has materialised – risks over which the carrier, by virtue of its position as the operator of the vessel, normally exercises control and in respect of which it therefore bears a legal duty to take all measures within its power to prevent from materialising.
69.      In order better to illustrate those considerations, it may be useful to
give some examples of
incidents in connection with the carriage of passengers by sea which may result in bodily injuries.
Such incidents include: slips, trips and falls on board (due to wet or uneven deck surfaces, poorly lit stairwells or unsecured flooring); accidents caused by falling objects (for example, unsecured luggage or equipment falling in cabins or public areas); accidents
occurring
during embarkation or disembarkation (such as accidents on gangways, steps or within boarding areas); accidents due to malfunctioning or poorly maintained facilities (for example, defective elevators or doors);
accidents due to inadequately maintained water rescue equipment (such as lifeboats, life vests, rescue nets and boarding ladders); and
accidents due to the negligence of
the crew (where the carrier failed to provide adequate safety or supervision). (32)
2.      Criteria for the application of Directive 90/314
70.      As previously observed, leisure activities that do not take place on
board
a vessel, such as excursions on land, clearly do not fall within the scope of Regulation No 392/2009. (33) However, such activities may fall within the scope of Directive 90/314 if they form part of the agreed package holiday. Accordingly, the passenger may, where applicable, invoke a breach of duty by the organiser of the cruise trip.
71.      The identification of which act of EU law applies in respect of incidents occurring in the context of other activities on board a cruise ship is of particular importance for the resolution of the main proceedings. As I have already explained with reference to EU legislation, a cruise is characterised by the provision of a wide range of services, such as accommodation and catering, as well as activities intended to entertain passengers. (34) In my view, the question of which legal instrument should govern such incidents must be assessed in the light of a number of considerations, which I will outline below.
72.      In that context, it is clear that
EU legislation has been adopted with the intention of
protecting people
participating in cruise travel. The EU legislature has adopted a wealth of legislation in the area of consumer protection law, which contains provisions that are favourable to consumers and
specifically adapted to the particularities of travel-related services. Consequently, it appears appropriate, as a general rule, to assess damage sustained by passengers in the course of the provision of services other than those intrinsically connected to the field of transport from the perspective of the rules established in the area of consumer protection.
73.      That approach is founded upon an interpretation of EU law that reflects the clear intention of the legislature
for composite travel services to be covered by the rules on package travel.
As recital 17 of Directive 2015/2302 indicates, cruises are to be distinguished (‘unlike in the case of the cruise’) from other conventional forms of passenger transport, such as that by road, train, water or air, in relation to which the accommodation component is considered subordinate to the transport of passengers (‘the main component is clearly transport’). That distinction made by the legislature
is of particular interpretative significance, as it implies that a cruise is, in essence, to be equated with hotel accommodation. That observation aligns to some extent with the widespread perception of cruise ships as ‘floating hotels’. (35)
74.      The legal implication thereof is that a substantial part of the services typically encompassed in a cruise, including accommodation and the use of recreational facilities (for example swimming pools, saunas, spas or gyms), fall outside the scope of the rules
concerning the carriage of passengers by sea and are instead governed by the legal regime applicable to travel services. Furthermore, it should be noted that the aforementioned recital 17 of Directive 2015/2302 clarifies that services which are intrinsically part of another travel service (such as the provision of meals, drinks and cleaning as part of accommodation) should not be considered as travel services in their own right.
75.      It follows from the above considerations that, from a legal perspective, it makes no difference whether a passenger suffers a bodily injury while resting in his
or her cabin or while dining in the ship’s restaurant, since, according to the
reasons underpinning the EU legislation, both incidents occurred while the passenger was being ‘accommodated’.
Due to the specific characteristics of cruises, the transport element recedes almost entirely into the background, such that the question of the potential applicability of Regulation No 392/2009 essentially no longer arises. Therefore, an injured passenger may, as
a general rule,
bring any claim on the basis of the provisions governing package travel, unless the injury in question was caused by an event clearly connected with the carriage of passengers by sea.
76.      The fact that only Directive 90/314 is applicable to the present cases – and not its successor, Directive 2015/2302 – does not preclude the interpretation
proposed herein, since the more recent directive merely offers interpretative guidance as to the manner in which the EU legislature intended to structure the legal protection of cruise passengers
within the EU legal system. Rather than extending the scope of the rules on package travel, the legislature
chose
to delineate the conditions for their application with greater precision, thereby seeking to eliminate interpretative uncertainties and protect consumers from being faced with legal grey areas.
77.      Accordingly, the fundamental elements set out under Article 2 of Directive 90/314 remain intact. Article 3 of Directive 2015/2302 retains the core definition of a ‘package’, while offering enhanced clarity regarding its scope. It sets out specific criteria under which various travel services, even if subject to separate contracts, may be regarded as constituting a ‘package’. Moreover, that provision articulates a clear demarcation between ‘packages’ and ‘linked travel arrangement’, thereby refining the legal framework governing composite travel services. For the reasons set out above, I am of the view that the considerations regarding the criteria for the application of the rules on package travel may likewise be applied to Directive 90/314.
78.      The concurrent application of Regulation No 392/2009 and Directive 90/314 cannot be ruled out
where incidents resulting in bodily injuries occur on board a cruise ship during the performance of a service that forms part of a package travel arrangement. In my opinion, in the event of doubt as to which rules apply, the compensation provisions under the package travel rules laid down in Directive 90/314 should prevail over the provisions of Regulation No 392/2009, unless the conditions for compensation under that regulation are clearly met.
79.      Those principles could be implemented in practice such that when a comprehensive package tour is at issue, there exists a presumption that the accident is not a result of maritime transport and, thus, comes within the liability regime laid down by
Directive 90/314, with the organiser bearing the burden of proof
to the contrary.
E.      Interpretative guidance for the referring court
80.      As regards the circumstances in the main proceedings, it must be borne in mind that Article 267 TFEU does not confer upon the Court the power to apply provisions of EU law to individual cases, but only to rule on the interpretation of the Treaties and acts of the EU institutions. The Court may, however, within the framework of judicial cooperation provided for by that article and on the basis of the material presented before it, provide the national court with an interpretation of EU law which may be useful to it in assessing the applicability of an
EU legal act. (36) In other words, the Court is empowered to provide the referring court with the guidance on interpretation necessary to enable it – subject to an
appraisal of all relevant facts – to determine whether Regulation No 392/2009 or Directive 90/314 is applicable to the case at hand.
81.      In that regard, it must be noted that MH and DI sustained bodily injuries on board a ship, and not during a shore excursion. Those injuries did not arise as a result of a ‘shipping incident’ within the meaning of Article 3(5) of the Athens Convention, nor is there any indication that any risk typically associated with the carriage of passengers by sea materialised. (37) Accordingly, the application of Regulation No 392/2009 must, in principle, be excluded.
82.      According to the information provided by the referring court, MH got out of bed without turning on the light, fell, and sustained an injury. Given that the incident occurred while the passenger was in her cabin, where she was spending the night, the situation must be assessed in the same manner as if she had been staying in a hotel, since, in that situation, the accommodation component is clearly more significant than the transport component. As accommodation is considered one of the services included in a package holiday under Article 2(1) of Directive 90/314, the liability provisions of that directive are applicable in such a situation.
83.      As regards
DI, she sustained injuries on board the cruise ship while serving herself at the buffet. As previously noted, the provision of meals constitutes a service that is closely connected with the accommodation of passengers on board a cruise ship. Accordingly, the provision of meals should not be regarded as an independent service, but rather as an integral part of the accommodation service promised by the tour operator under a package holiday contract. Accordingly, in principle, the liability provisions of Directive 90/314 should also apply in such a situation.
84.      In that context, it is important to emphasise that the interpretative guidance provided does not constitute a determination as to whether the conditions for establishing a claim for damages are fulfilled in the specific cases at hand. The legal assessment of such conditions lies exclusively within the competence of the national courts, which must evaluate the matter in the
light of the particular circumstances of the individual case.
F.      Intermediate conclusion
85.      In the foregoing analysis, the relationship between the liability regime laid down by
Regulation No 392/2009 and that laid down by Directive 90/314 has been clarified by means of legal interpretation, thus enabling the delineation
of their respective scopes of application. Particular emphasis has been placed on maintaining the unity and coherence of the EU’s legal order despite the evolution that it has undergone throughout the past decades. (38) The Court is entrusted with the task of ensuring a coherent and harmonious interpretation of EU law, in a manner that upholds the principle of legal certainty and effectively safeguards consumer protection. (39)
86.      On the basis of that analysis, in my view, the questions referred for a preliminary ruling should be answered to the effect that Article 2, Article 3(1) and the first paragraph of Article 7 of Regulation No 392/2009, as well as Annex I thereto, must be interpreted as governing the liability of a maritime carrier operating a cruise that has the characteristics of a package holiday within the meaning of Directive 90/314 only in so far as it concerns personal injuries sustained by a passenger as a result of the sea carriage. Conversely, personal injuries arising in the context of services typically included in a cruise package – such as accommodation and catering – fall within the material scope of Directive 90/314.
VI.    Conclusion
87.      In the light of the above considerations, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Cour de cassation (Court of Cassation, France) as follows:
Article 2, Article 3(1) and the first paragraph of Article 7 of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents, as well as Annex I thereto,
must be interpreted as governing the liability of a maritime carrier operating a cruise that has the characteristics of a package holiday within the meaning of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours only in so far as it concerns personal injuries sustained by a passenger as a result of the sea carriage. Conversely, personal injuries arising in the context of services typically included in a cruise package – such as accommodation and catering – fall within the material scope of Directive 90/314.
1      Original language: English.
2      OJ 2009 L 131, p. 24.
3      OJ 1990 L 158, p. 59.
4      Regulation of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ 2010 L 334, p. 1).
5      Directive of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (OJ 2015 L 326, p. 1).
6      Loi fixant les conditions d’exercice des activités relatives à l’organisation et à la vente de voyages ou de séjours (Law laying down the conditions for the operation of activities relating to the organisation and sale of travel or stays), (JORF of 14 July 1992, text No 160).
7      Loi de développement et de modernisation des services touristiques (Law on the development and modernisation of tourism services), (JORF of 24 July 2009, text No 169).
8      Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, concluded in Athens on 13 December 1974, which came into force on 28 April 1987 (United Nations Treaty Series, Vol. 1463, 1987, p. 19, No 24817; ‘the Athens Convention’).
9      Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, concluded in London on 1 November 2002, which came into force on 23 April 2014 (United Nations Treaty Series, Vol. 3283).
10      See point 29 et seq. of the present Opinion.
11      See point 64 et seq. of the present Opinion.
12      It is settled case-law that international agreements concluded by the European Union pursuant to the provisions of the Treaties constitute, as far as the European Union is concerned, acts of its institutions. As such, those agreements are, from the date of their entry into force, an integral part of the EU legal order. Pursuant to Article 216(2) TFEU, ‘agreements concluded by the [European] Union are binding upon the [EU institutions] and on its Member States’. In addition, it follows from Article 19(3)(b) TEU and from point (b) of the first paragraph of Article 267 TFEU that the Court has jurisdiction to give preliminary rulings on the interpretation and the validity of acts adopted by the EU institutions, without exception, which includes international agreements concluded by the European Union (see judgments of 30 April 1974, Haegeman, 181/73, EU:C:1974:41, paragraphs 5 and 6; of 30 May 2006, Commission v Ireland, C‑459/03, EU:C:2006:345, paragraph 82; and of 22 November 2017, Aebtri, C‑224/16, EU:C:2017:880, paragraph 50). Consequently, where a regulation expressly includes or annexes an international agreement, its provisions must be treated as directly applicable EU law.
13      See, to that effect, Article 3 of the Athens Convention. See also Delebecque, P., Droit maritime, 14th edition, Dalloz, Paris, 2020, p. 690.
14      See the Danish- (‘et fælles sæt regler’), Dutch- (‘een uniforme regeling’), French- (‘un ensemble unique de règles’), German- (‘einheitliche Regeln’), Irish- (‘sraith amháin rialacha’), Italian- (‘un’unica serie di norme’), Lithuanian- (‘bendrą taisyklių … rinkinį’), Polish- (‘jednolitego zbioru zasad’), Romanian- (‘unui set unic de norme’) and Spanish- (‘un conjunto único de normas’) language versions.
15      In that context, it is noteworthy that the UK Supreme Court observed that ‘the Athens Convention, like many international conventions concerning international carriage and transport, aims within its scope to create an international code which replaces the differing domestic rules of the states which have acceded to it by uniform international rules’ (see judgment of the Supreme Court of the United Kingdom of 17 October 2018, Warner v Scapa Flow Charters, Case No (2018) UKSC 52, paragraph 13; emphasis added).
16      See judgment of 18 March 2021, Kuoni Travel (C‑578/19, EU:C:2021:213, paragraph 45), where the Court held that, under Article 5 of Directive 90/314, the liability of the organiser for the improper performance or non-performance of package travel services is to be interpreted
broadly, and includes liability for failures by third-party service providers, in view of the objective of ensuring a high level of consumer protection pursued by that directive.
17      See Opinion of Advocate General Tizzano in Leitner (C‑168/00, EU:C:2001:476, point 29 et seq.). Chapman, M., Prager, S. and Harding, J., Saggerson on Travel Law and Litigation, 5th edition, Wildy, Simmonds & Hill Publishing, London, 2013, p. 339; the authors argue that Directive 90/314 covers loss of enjoyment damages in addition to general damages for pain and suffering when a holiday is ruined or compromised by a personal injury accident for which the organiser is responsible.
18      Ramming, K., ‘Die Haftung des Reiseveranstalters für Personen- und Gepäckschäden bei Schiffsbeförderungen’, Recht der Transportwirtschaft, No 9, 2017, pp. 322 and 347; the author argues that there may be overlaps between package travel law, on the one hand, and passenger transport law, on the other. Nevertheless, the author points out that the conditions for liability differ and must be examined independently.
19      Bokareva, O., ‘Claims for personal injuries by cruise ship passengers under international and EU regimes’, Codification of Maritime Law – Challenges, Possibilities and Experience, 1st edition, Informa Law from Routledge, London, 2019, p. 201; the author argues that, in principle, both Regulation No 392/2009 and Directive 90/314 should be applicable, given that a cruise comprises not only transport services but also additional elements such as accommodation, catering, and leisure activities. In the author’s view, the two regimes in force create a situation in which it is not easy for a claimant or his or her lawyer to assess in advance which regime applies, as it can largely depend on the chosen forum.
20      Judgment of 2 September 2021 (C‑570/19, EU:C:2021:664, paragraph 158).
21      Judgment of 26 March 2020 (C‑215/18, ‘the judgment in Primera Air Scandinavia’, EU:C:2020:235, paragraph 35).
22      Regulation of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).
23      Judgment of 17 October 2024 (C‑650/23 and C‑705/23, EU:C:2024:903, paragraphs 39 and 40).
24      For example, recital 16 of Regulation No 261/2004 states that ‘in cases where a package tour is cancelled for reasons other than the flight being cancelled, this Regulation should not apply.’ Furthermore, Articles 2 and 3 of Directive 90/314 contain provisions setting out its material scope and providing legal definitions, which makes it easier to apply this legal act. Finally, Article 8(2) of Regulation No 261/2004 provides that the rights foreseen under ‘paragraph 1(a) shall also apply to passengers whose flights form part of a package, except for the right to reimbursement where such right arises under [Directive 90/314].’
25      Judgment of 7 December 2010 (C‑585/08 and C‑144/09, EU:C:2010:740, paragraphs 45 and 46).
26      First, the material scope of Directive 90/314 is broader than that of Regulation No 392/2009, as it encompasses the entire range of services offered within the framework of a package travel contract. Second, the minimum harmonisation approach underpinning Directive 90/314 allows Member States to adopt or maintain more stringent consumer protection rules. It differs in that respect from its successor, Directive 2015/2302, which follows a maximum harmonisation approach. The French legislature appears to have made use of that competence under Directive 90/314
when it introduced a system of strict liability (‘responsabilité de plein droit’) for the organiser in the ‘Code du tourisme’ (see, in particular, Delebecque, P., Droit maritime, 14th edition, Dalloz, Paris, 2020, p. 698).
27      See, in that respect, Le Tourneau, P. and Bloch, C., ‘Contrat de transport’, Répertoire de droit civil, Dalloz, Paris, 2021, p. 36, paragraph 222.
28      See point 32 of the present Opinion.
29      Tonner, K., ‘Die Kreuzfahrt als Pauschalreise, die Haftung nach dem Athener Übereinkommen 2002 und die Fahrgastrechte im Schiffsverkehr’, ReiseRecht aktuell, Vol. 21, No 5, De Gruyter Brill, 2013, p. 212; the author argues that while the many acts applicable to cruises offer travellers appropriate legal protection, that benefit comes with significant complexity. In particular, the rules on package travel and on the carriage of passengers by sea are not well coordinated.
30      See point 36 of the present Opinion.
31      See, in that respect, Bokareva, O., ‘Claims for personal injuries by cruise ship passengers under international and EU regimes’, Codification of Maritime Law – Challenges, Possibilities and Experience, 1st edition, Informa Law from Routledge, London, 2019, p. 203.
32      It cannot be ruled out that, in certain circumstances, incidents giving rise to bodily injuries will fall within a ‘grey area’ because they occur on board a cruise ship in connection with services provided under a package travel arrangement. Consequently, the classification of such incidents may not always prove straightforward in practice. By way of illustration, the following situations may be envisaged: food poisoning or allergic reactions (when the ship fails to comply with hygiene or food safety standards); medical malpractice by on-board medical staff (errors in treatment or diagnosis that result in bodily harm); or
accidents during on-board recreational activities. In that regard, it should be noted that, in accordance with the approach presented in the present Opinion, such scenarios should, in the interest of the consumer, fall within the material scope of Directive 90/314 (see points Error! Reference source not found. and Error! Reference source not found. of the present Opinion).
33      See point 36 of the present Opinion.
34      See point 54 of the present Opinion.
35      Tonner, K., ‘Die Kreuzfahrt als Pauschalreise, die Haftung nach dem Athener Übereinkommen 2002 und die Fahrgastrechte im Schiffsverkehr’, ReiseRecht aktuell, Vol. 21, No 5, De Gruyter Brill, 2013, p. 206.
36      See, by analogy, judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria (C‑83/14, EU:C:2015:480, paragraph 71).
37      See point 68 of the present Opinion.
38      See point 54 et seq. of the present Opinion.
39      That is a function, which the Court has consistently performed in the past, as evidenced by its case-law (see judgments of 15 March 2012, Pereničová and Perenič,  C‑453/10, EU:C:2012:144, paragraphs 43 and 47; of 25 November 2021, StWL Städtische Werke Lauf a.d. Pegnitz, C‑102/20, EU:C:2021:954, paragraphs 69 and 75; and the judgment in Primera Air Scandinavia,  paragraph 38).