Keywords

Summary



Keywords

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 - Infringement of domestic competition law - Irrelevant

(Council Directive 90/314, Art. 7)

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)

Summary

1 Article 7 of Directive 90/314 on package travel, package holidays and package 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 contravenes national competition law and for which the principal contractor, if he travels alone, pays airport taxes and a single-room supplement or, if accompanied 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 newspaper has been found to be incompatible with national competition law cannot prevent those trips from constituting package travel within the meaning 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 legislation 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 legislation 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 corresponding quarter of the previous calendar year, and which requires an organiser 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 organiser's turnover in the current year. Such 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 insolvency.

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 implemented 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 unforeseeable events, since such circumstances are not such as to preclude the existence of a direct causal link.