OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 10 November 2020 ( 1 )

Case C‑578/19

X

v

Kuoni Travel Ltd,

intervener:

ABTA Ltd

(Request for a preliminary ruling

from the Supreme Court of the United Kingdom)

(Reference for a preliminary ruling – Directive 90/314/EEC – Package travel, package holidays and package tours – Contract concerning package travel concluded between a travel organiser and a consumer – Liability of the travel organiser for the proper performance of the obligations arising from the contract by other suppliers of services – Exemption from liability – Event that cannot be foreseen or forestalled by the travel organiser or the supplier of services – Damage resulting from the acts of an employee of a hotel acting as a supplier of services under the contract – Concept of a ‘supplier of services’)

I. Introduction

1. ‘When one moves from the legal categories of contract and tort to liability ex contractu and ex delicto, it was once suggested by the Victorian judge Bramwell LJ that one is moving from plain English words to terms of art. … What Bramwell LJ seemingly had in mind was the empirical approach of the common law rooted, a result of a form of action, in sets of factual situations, and this was to be contrasted with the highly rationalised systematisation of legal relations underpinning the Romanist law of obligations. [In the common law] an action founded on contract or tort is an action founded on a particular set of facts – “the substance of the matter” – whereas, [in civil law], an action ex contractu or ex delicto is an action defined by a formal system of legal relations. … The English law of obligations … is little interested in formalised legal relations; liability is simply a matter of “a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”. … The civil law, in contrast, sees liability (responsabilité) as a failure to perform a pre-existing and binding obligation. Responsabilité is a matter of inexécution of the vinculum iuris. In fact, the position is rather more complex. … The [civil law] term responsabilité contractuelle involves [in the English law of obligations] the importation into the contract of the tort (delict and quasi-delict) idea of liability (la responsabilité civile) which has had the effect of subsuming the notion of non-performance of a contractual obligation under the regime of tort.’ ( 2 )

2. That extract helps to illustrate and provide a better understanding of the scale of the disparities between the rules and practices of the various Member States in relation to package travel. It is with a view to addressing those disparities that the EU legislature established common rules that have not only enabled operators from one Member State to offer their services in other Member States but also allowed EU consumers to benefit from comparable conditions when buying the package travel in any Member State. ( 3 )

3. This request for a preliminary ruling, made to the Court by the Supreme Court of the United Kingdom, concerns the interpretation of the second part of the third indent of Article 5(2) of Directive 90/314.

4. The request was made in the context of proceedings between X, a traveller residing in the United Kingdom, and Kuoni Travel Ltd (‘Kuoni’), a travel organiser established in the United Kingdom, concerning a claim for compensation for damage resulting from the improper performance of a contract relating to package travel concluded between X and Kuoni.

5. The referring court wishes to ascertain, in essence, whether a package travel organiser can benefit from the exemption from liability laid down in the second part of the third indent of Article 5(2) of Directive 90/314 where the failure to perform or the improper performance of the contract concluded by that organiser with a consumer is the result of the actions of an employee of a supplier of services performing that contract.

6. This case therefore gives the Court the opportunity to clarify the conditions under which a travel organiser incurs liability where an employee of a supplier of services of that organiser assaults and rapes a person who has concluded a package travel contract with that organiser.

II. Legal context

A. EU law

7. Article 2(2) and (4) of Directive 90/314 provides: ‘For the purposes of this Directive: … 2. ‘organizer’ means the person who, other than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer; … 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’); …’

8. The second subparagraph of Article 4(6) of that directive states: ‘In [the case where 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], 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: … (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.’

9. Article 5(1) to (3) of the Directive provides: ‘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 their 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 the 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.’

10. Directive 90/314 was repealed with effect from 1 July 2018 by Directive (EU) 2015/2302. ( 4 ) However, Directive 90/314 is applicable in the present case in view of the date of the facts of the dispute in the main proceedings.

B. UK law

1. The 1992 Regulations

11. The Package Travel, Package Holidays and Package Tours Regulations of 22 December 1992 ( 5 ) (‘the 1992 Regulations’) transposed Directive 90/314 in the United Kingdom.

12. Regulation 15(1), (2) and (5) of the 1992 Regulations provides: ‘1. The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services. 2. The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because - (a) the failures which occur in the performance of the contract are attributable to the consumer; (b) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or (c) such failures are due to - (i) unusual and unforeseeable circumstances beyond the control of the party by whom the exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised; or (ii) an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall. … 5. Without prejudice to paragraphs (3) and (4) above, liability under paragraphs (1) and (2) above cannot be excluded by any contractual term.’

2. The 1982 Act

13. Pursuant to Section 13 of the Supply of Goods and Services Act ( 6 ) of 13 July 1982, in the version thereof applicable to the facts at issue in the main proceedings (‘the 1982 Act’), Kuoni was required to carry out the services promised under the contract with reasonable care and skill.

III. The facts at the origin of the dispute in the main proceedings

14. On 1 April 2010, X and her husband entered into a contract with Kuoni under which that company agreed to provide a package holiday in Sri Lanka which included return flights from the United Kingdom and 15 nights’ all-inclusive accommodation at a hotel between 8 and 23 July 2010.

15. Clause 2.2 of that contract, which relates to the booking conditions, provides: ‘Your contract is with [Kuoni]. We will arrange to provide you with the various services which form part of the holiday you book with us.’

16. Clause 5.10(b) of the contract, which also relates to the booking conditions, reads as follows: ‘… we will accept responsibility if due to fault on our part, or that of our agents or suppliers, any part of your holiday arrangements booked before your departure from the UK is not as described in the brochure, or not of a reasonable standard, or if you or any member of your party is killed or injured as a result of an activity forming part of those holiday arrangements. We do not accept responsibility if and to the extent that any failure of your holiday arrangements, or death or injury is not caused by any fault of ours, or our agents or suppliers; is caused by you; … or is due to unforeseen circumstances which, even with all due care, we or our agents or suppliers could not have anticipated or avoided.’

17. On the morning of 17 July 2010, whilst making her way through the grounds of the hotel to the reception, X came upon N, an electrician and hotel employee, who was on duty and wearing the uniform of a member of the hotel staff. After offering to show X a shortcut to reception, N lured her into an engineering room where he raped and assaulted her.

18. In the dispute in the main proceedings, X claimed damages against Kuoni in respect of the rape and assault suffered on the ground that they were the result of the improper performance of the contract which X had concluded with Kuoni as well as a breach of the 1992 Regulations. Kuoni denied that the rape and assault committed by N constituted a breach of the obligations owed by it to X under the contract or the 1992 Regulations. In support of that argument, Kuoni relied on clause 5.10(b) of the contract and Regulation 15(2)(c)(ii) of the 1992 Regulations.

19. The High Court (United Kingdom) dismissed X’s action for damages on the ground that the ‘holiday arrangements’ referred to in clause 5.10(b) of the contract did not include a member of the maintenance staff conducting a guest to reception. In addition, it held, obiter dictum, that Kuoni would in any event have been able to rely on the defence to liability laid down in Regulation 15(2)(c)(ii) of the 1992 Regulations.

20. On appeal, the Court of Appeal (England & Wales) (United Kingdom) also dismissed X’s appeal. The majority, comprising Sir Terence Etherton and Lady Justice Asplin, took the view that a member of the hotel’s maintenance staff, known to be such to the guest and who conducted that guest to the hotel’s reception, did not fall within the scope of clause 5.10(b) of the contract. That majority considered that the 1992 Regulations were not designed to facilitate a claim against a travel organiser for wrongful conduct by an employee of a supplier where that conduct was not part ‘of the role in which he was employed’ and where the supplier was not vicariously liable either under the domestic law applicable to the consumer or the foreign law applicable to the supplier. The majority showed its inclination, in the form of obiter dictum, to find that Kuoni was not liable under clause 5.10(b) of the contract or pursuant to Regulation 15 of the 1992 Regulations because N was not a ‘supplier’ within the meaning of those provisions.

21. The referring court observes that, in his dissenting opinion, Lord Justice Longmore stated that he had doubts as to whether the hotel was not liable, under English law, for a rape committed by an employee in uniform and presented to the public as a reliable employee. He noted that, under English law, the governing principle is that the person who undertakes contractual liability remains personally liable for the performance of the contract even if that contract is performed by a third party. He explained that the purpose of Directive 90/314 and the 1992 Regulations was essentially to give the holidaymaker whose holiday had been ruined a remedy against the other party to the contract. In his view, it should be left to the travel organiser to sort out the consequences of the ruined holiday with those with whom it had itself co-contracted, who could then address the problems further down the line, whether with their own employees or independent contractors. In addition, he argued that there was no justification for concluding that the concept of ‘supplier’ should stop with the hotel in the case of an independent contractor or an employee. He added that there could be no doubt that some employees should be regarded as suppliers.

22. On further appeal, the Supreme Court of the United Kingdom took the view that two main questions had been brought before it, namely, first, whether the rape and assault of X constitute improper performance of Kuoni’s obligations under the contract and, second, in the event of an answer in the affirmative to the first question, whether Kuoni’s liability in respect of N’s conduct may be excluded by reliance on clause 5.10(b) of the contract and, where appropriate, Regulation 15(2)(c) of the 1992 Regulations.

23. In order to rule on the second question in the appeal, the Supreme Court of the United Kingdom considered that questions had to be referred to the Court for a preliminary ruling. For the purposes of that reference, that supreme court asks the Court to regard the conducting of X to reception by a member of the hotel’s staff as a service coming under the ‘holiday arrangements’ which Kuoni had undertaken to provide and that the rape and assault committed constitute improper performance of the contract.

IV. The questions referred for a preliminary ruling and the procedure before the Court

24. It is in that context that the Supreme Court of the United Kingdom, by order of 24 July 2019, received at the Registry of the Court on 30 July 2019, decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organizer or retailer with a consumer to provide a package holiday to which … Directive [90/314] applies, and that failure to perform or improper performance is the result of the actions of an employee of a hotel company which is a provider of services to which that contract relates: (a) is there scope for the application of the defence set out in the second part of the third alinea to Article 5(2) of the Directive; and, if so, (b) by which criteria is the national court to assess whether that defence applies? (2) Where an organizer or retailer enters into a contract with a consumer to provide a package holiday to which … Directive [90/314] applies, and where a hotel company provides services to which that contract relates, is an employee of that hotel company himself to be considered a “supplier of services” for the purposes of the defence under Article 5(2), third alinea of the Directive?’

25. Written observations were lodged by the parties to the main proceedings ( 7 ) and by the European Commission. Pursuant to Article 76(2) of its Rules of Procedure, the Court decided not to hold a hearing. By a measure of organisation of procedure of 31 March 2020, the Court put questions for a written response to all the parties and persons concerned. The written observations on the questions forming the subject of those measures of organisation of procedure were lodged by those same parties and the Commission within the time limit prescribed.

V. Analysis

26. By its first question referred for a preliminary ruling, the referring court asks, in essence, whether the defence to liability laid down in the second part of the third indent of Article 5(2) of Directive 90/314 in respect of a package travel organiser may be applied where the failure to perform or the improper performance of the contract concluded by that organiser with a consumer is the result of the actions of an employee of a supplier of services performing that contract. If that question were to be answered in the affirmative, the referring court wishes to know the criteria for application of the defence laid down in that provision.

27. By its second question, the referring court seeks to determine whether an employee of a supplier of services in the context of a package travel contract is to be regarded as a supplier of services for the purposes of applying the second part of the third indent of Article 5(2) of Directive 90/314. ( 8 )

28. Since the answer to part (a) of the first question turns on the scope of the concept of a ‘supplier of services’ within the meaning of Article 5 of Directive 90/314, which is the subject of the second question, I will consider those two questions together.

29. In order to answer those questions, it seems appropriate to me to recall, as a preliminary point, the purpose of Directive 90/314 before addressing the extent of the system of liability established by it. With that in mind, after assessing the scope of the concept of a ‘supplier of services’ within the meaning of Article 5 of that directive, I will turn to the question of whether the defence provided for in the second part of the third indent of Article 5(2) of the directive applies where the failure to perform or the improper performance of a package travel contract is the result of the actions of an employee of a supplier of services performing that contract. Lastly, since I propose that the Court answer part (a) of the first question in the negative, there is in my view no need to answer part (b) of the first question relating to the criteria for application of the defence provided for in the second part of the third indent of Article 5(2) of Directive 90/314.

A. Introductory comments on the purpose of Directive 90/314

30. In order to provide a better understanding of the context of the system of liability of package travel organisers established by Directive 90/314, I think it is helpful to begin my analysis by recalling the purpose of that directive.

31. To that end, I would point out from the outset that that directive is part of a series of acts of EU law on harmonisation in the field of substantive private law that were adopted on the basis of Article 100a of the EEC Treaty (now, after amendments, Article 114 TFEU). As it forms part of that legislative context, the directive takes account of the need to protect consumers, ( 9 ) in conjunction with directives geared to the implementation of the internal market. ( 10 ) It is apparent from the first three recitals of Directive 90/314 that the establishment of common rules on packages contributes to the elimination of the obstacles to the freedom to provide services and the distortions of competition amongst operators established in different Member States, whilst enabling consumers ‘to benefit from comparable conditions when buying a package in any Member State’. ( 11 )

32. In that connection, the Court has stated that the fact that Directive 90/314 is intended to assure other objectives cannot preclude its provisions from also having the aim of protecting consumers. ( 12 ) It has therefore affirmed in its case-law that that directive seeks to ensure a high level of protection for consumers. ( 13 )

33. This is therefore, in general terms, the context of the system of liability of package travel organisers established by that directive and, more specifically, the defences to such liability.

B. The scope of the system of liability of package travel organisers established by Article 5 of Directive 90/314

1. General considerations

34. I would like to state from the outset that the system of liability established by Directive 90/314 is a system of contractual liability, the general principle of which is that the debtor must be liable for the failure to perform or the improper performance of the contract concluded between the parties. In that context, the failure to perform an obligation is understood in the broad sense to mean any failure to fulfil a contractual obligation. That definition of the failure to perform an obligation is the cornerstone of the system of contractual liability under which one party to a contract may bring an action against the other party if the latter does not fulfil all its contractual obligations. ( 14 )

35. I would also like to observe that it follows from Article 1 and from Article 2(1) and (2) of Directive 90/314 that a package travel contract comprises several elements, namely transport, accommodation and other tourist services sold or offered for sale at an inclusive price ( 15 ) but which are, however, provided by a number of suppliers of services in another Member State or in a non-member country. ( 16 ) This complexity inherent in package travel contracts is, in my view, one of the factors which explain the attention given by the EU legislature to the high level of protection for consumers in that directive and, therefore, the establishment of a system of liability of the organiser (and/or of the retailer) in Article 5 of the Directive. By laying down a series of rules covering the obligation to compensate for the damage caused to consumers, that article seeks to facilitate the enforcement of the liability of package travel organisers by consumers. ( 17 )

2. The liability of a package travel organiser to consumers within the meaning of Article 5(1) of Directive 90/314

36. Pursuant to Article 5(1) of Directive 90/314, the organiser (and/or retailer) party to the package travel contract is liable to the consumer for the proper performance of the obligations arising from that contract, irrespective of whether such obligations are to be performed by that organiser (and/or retailer) or by other suppliers of services without prejudice to the right of the organiser (and/or retailer) to pursue those other suppliers of services. ( 18 )

37. In my view, it is clear from the wording of that provision that the organiser remains personally liable to the consumer for the proper performance of the contract, regardless of whether the contract is performed by ‘another supplier of services’. ( 19 ) As Advocate General Tizzano found, ‘in particular, as regards contractual liability, the nature of the triangular relationship between the organiser and/or retailer, the consumer and the provider of services must be stipulated in order that, as a general rule, a single party amongst the former may be identified as liable for the damage caused to the consumer by the non-performance or improper performance of the contract’. ( 20 )

38. In essence, this means that the consumer has the opportunity of bringing legal proceedings against the organiser party to the contract. ( 21 ) Furthermore, it is clear from Article 5(3) of Directive 90/314 that contractual clauses excluding the liability of the organiser for the non-performance or the improper performance of the contract by other suppliers of services would be declared null and void. ( 22 )

39. In addition, I consider it important to note that, within the context of Article 5(1) of Directive 90/314, the choice of the EU legislature to allow the organiser to pursue, where appropriate, the ‘other suppliers of services’ reflects its intention to establish a high level of protection for consumers by seeking to prevent consumers, by virtue of their consent to the general terms and conditions of the package travel contract, from being deterred from bringing an action for damages or being obliged to bring several different actions based on the damage resulting for them from the failure to perform or the improper performance of the contract.

40. As the Commission states in its reply to a question put by the Court, the objective of the system of contractual liability established by that directive is to focus liability in the person of the organiser for all cases of non-performance or improper performance of the contract, so that the consumer has, at the very least, a putative defendant from whom it can seek compensation for damages, thus enabling a high level of protection for consumers to be ensured. The responsibility of the organiser within the meaning of Directive 90/314 is based on the link between, on the one hand, the act or omission at the origin of the loss or harm caused to the consumer and, on the other hand, the obligations arising from the package travel contract, as defined in Article 2(1) of that directive. ( 23 )

41. The fundamental question raised is therefore whether the obligations arising from the package travel contract within the meaning of Article 2(5) of Directive 90/314 were properly performed for the purposes of Article 5(1) of that directive. ( 24 )

42. In that connection, I note that this involves determining, on the one hand, which contractual obligations arise from the package travel contract and, on the other hand, how those obligations are to be performed. Thus, in accordance with the general rules of contractual liability, it is irrelevant whether the person responsible for the non-performance or the improper performance of those obligations is the organiser or another supplier of services: the organiser remains liable to the consumer. This is therefore a case of strict liability on the part of the package travel organiser to the consumer. ( 25 )

43. However, it should be recalled that Article 5(1) of Directive 90/314 sets out, inter alia, that ‘Member States shall take the necessary steps to ensure that the organizer … party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract’. Thus, as the Commission has rightly pointed out, the scope of the organiser’s liability is determined by the law applicable to the package travel contract. ( 26 )

44. In this regard, I must clarify that the contractual liability of a debtor is not, in principle, absolute liability: a debtor may avoid liability if he satisfies certain conditions. Accordingly, within the context of the system of liability of organisers established by Directive 90/314, pursuant to Article 5(2) of that directive, the organiser is not liable for the failure to perform or the improper performance of the contract if that failure to perform or improper performance cannot be attributed to it. Such liability is likewise subject to the conditions relating to the limitation of liability as set out in the third and four subparagraphs of Article 5(2) of Directive 90/314. ( 27 ) Those provisions cover the limits that may be allowed by Member States in relation to the compensation for damage resulting from the non-performance or the improper performance of the contract. ( 28 ) Moreover, I would also point out that, pursuant to Article 5(3) of that directive, ‘there may be no exclusion by means of a contractual clause from the provisions of paragraphs 1 and 2 [of that article]’. ( 29 )

45. As I have just set out in the foregoing considerations, in the light of Article 5(1) of Directive 90/314, not only is its wording clear and unambiguous as regards the liability of the package travel organiser, but a literal reading of that provision is also supported by the scheme and the purpose of that directive as well as by the objective of the provision. ( 30 )

46. It follows from the foregoing that the organiser must be liable to the consumer and that, therefore, the defences laid down in Article 5(2) of Directive 90/314 may, in principle, be applied. ( 31 )

47. In the present case, as regards whether the obligations arising from the package travel contract concluded between Kuoni and X were properly performed for the purposes of Article 5(1) of Directive 90/314, it seems relevant to recall, at this stage of the analysis, that the referring court asks the Court to regard the conducting of X to reception by a member of the hotel staff as a service coming under the ‘holiday arrangements’ which Kuoni had committed to providing and that the rape and assault committed during the provision of that service constituted improper performance of the contract. ( 32 )

48. Accordingly, it is necessary to examine whether, in the light of the system of liability established by Directive 90/314, an employee of a supplier of services in the context of a package travel contract may be regarded as a supplier of services for the purposes of applying the second part of the third indent of Article 5(2) of that directive.

49. With that in mind, I will consider, in the following section, the scope of the concept of a ‘supplier of services’ within the meaning of Directive 90/314.

3. The meaning and scope of the concept of a ‘supplier of services’ within the meaning of Directive 90/314

50. I would begin by observing that X, Kuoni, ABTA and the Commission are of the view that the hotel employee himself cannot be regarded as a supplier of services. However, X argues that, in certain specific circumstances, an employee who provides the defective service may be regarded as being a supplier of services if an alternative classification would deny the consumer the protection afforded by Article 5 of Directive 90/314.

51. I note that the concept of a ‘supplier of services’ is not defined in Directive 90/314 and that that directive does not contain any reference to the law of the Member States with a view to determining the meaning and scope of that concept.

52. In that regard, I am bound to recall that, in accordance with settled case-law of the Court, it follows from the requirements both of the uniform application of EU law and of the principle of equality that the wording of a provision of EU law which does not expressly refer to the law of the Member States in order for its meaning and scope to be determined must normally be given an independent and uniform interpretation throughout the European Union; that interpretation must take into account the context of the provision and the objective pursued by the relevant legislation. ( 33 )

53. I must point out, first of all, that, unlike a supplier of services who provides services for remuneration, an employee of a supplier of services provides the services stipulated in the package travel contract as part of a subordinate relationship with his employer that does not exist in the case of a supplier of services, such as a hotel, a restaurant, a tour guide or a sports coach, whether that supplier is a natural or legal person.

54. In my view, the equivalent of the term ‘supplier of services’, used in the different language versions of Article 5 of Directive 90/314 calls to mind a natural or legal person who provides services for remuneration. ( 34 )

55. Next, I consider it appropriate to note that only Article 5 of Directive 90/314 uses the words ‘suppliers of services’. ( 35 ) Accordingly, that concept is used solely in the context of the liability of organisers (and/or retailers) for the failure to perform or the improper performance of the obligations arising from the package travel contract concluded with consumers. As is clear from the definition of the word ‘package’ in Article 2(1) of that directive, those obligations relate to the services stipulated under the package travel contract, that is to say transport services, accommodation services or other tourist services (tours, lessons, catering etc.). However, no reference is made to the employees of suppliers of services in any provision of that directive. In addition, I would observe that although the EU legislature intended to enable the organiser to pursue remedies against a supplier of services, there is no similar possibility for the organiser to pursue the employees of the suppliers of services.

56. I am therefore of the view that, within the meaning of Directive 90/314, it is not possible to regard an employee of a supplier of services as being per se the ‘supplier of services’.

57. However, in the present case, the matter to be settled is not whether an employee of a supplier of services may be regarded per se as being a supplier of services but whether, within the context of the system of liability established by Article 5 of Directive 90/314, the acts or omissions of an employee of a supplier of services who performs the contract may be treated as acts or omissions of that supplier of services.

58. It is from that perspective that I propose considering the applicability of the defence provided for in the second part of the third indent of Article 5(2) of Directive 90/314.

C. The applicability of the defence provided for in the second part of the third indent of Article 5(2) of Directive 90/314 where the failure to perform or the improper performance of a travel contract package is the result of the acts of an employee of a supplier of services performing that contract

1. General considerations

59. It is, in my view, important to note that every supplier of services performs the contractual obligations using its own organisational structure (division of labour between employees, trainees etc.). That structure may be very different from one supplier to the next, as is the case with a five-star hotel and a small, family run hotel. Accordingly, in order to determine the liability of the organiser or of its supplier of services, there is no need to ascertain who specifically performed the contractual obligations.

60. It follows that, in order to determine whether the defence provided for in the second part of the third indent of Article 5(2) of Directive 90/314 is applicable in a situation such as that in the main proceedings, the following question is raised: in which circumstances may the acts or omissions of an employee of a supplier of services, including wrongful acts committed intentionally, be attributed to his employer/supplier of services in the light of the system of liability established by Directive 90/314?

61. I will answer that question in the following section.

2. The circumstances in which the acts or omissions of an employee of a supplier of services may be attributed to his employer/supplier of services in the light of the system of liability established by Directive 90/314

62. I note from the outset that the liability of the organiser, within the meaning of Directive 90/314, may be incurred solely in the performance of the contractual obligations. As I have already pointed out, that liability is based on the link, on the one hand, between the acts or omissions at the origin of the loss or harm caused to the consumer and, on the other hand, the obligations arising from the package travel contract. ( 36 ) Accordingly, the failure to perform or the improper performance of the contract that is the result of the acts or omissions linked to the damage suffered by the consumer and committed by an employee in the performance of the contractual obligations must be attributed to the organiser and to the employer/supplier of services. If that were not the case, the organiser could very easily avoid any liability for the proper performance of the travel contract by delegating the performance of that contract to a supplier of services, whose employees actually perform the obligations arising from that contract.

63. Next, I would observe that, pursuant to Article 5(1) of Directive 90/314, the organiser must be liable, on the one hand, for acts and omissions of an employee of a supplier of services in the performance of the contractual obligations specified in the contract, as defined in Article 2(5) of that directive and, on the other hand, for the acts and omissions of that employee in the performance of the obligations which are regarded as being ancillary to the services referred to in Article 2(1)(b) of the Directive. ( 37 )

64. More specifically, according to the definition of ‘package’ in Article 2(1)(b) of Directive 90/314, the accommodation service is one of the three components that may be sold or offered for sale by the organiser. That service, which is usually provided by a hotel, is performed by its employees who themselves carry out their contractual obligations vis-à-vis the hotel pursuant to their contracts of employment. Such obligations may include, inter alia, porter services, catering, valet parking, concierge services, table service, room service, bicycle hire and cleaning or maintenance services. These services are therefore services ancillary to the accommodation service provided by the hotel under the package travel contract.

65. In those circumstances, it is clear to me that an employee of a hotel may, in principle, be regarded as performing the contractual obligations arising from a package travel contract where he is on duty, wearing the uniform of a member of hotel staff and thus appears to guests/consumers to be a trustworthy person, whether the obligations are performed in the hotel premises or outside its facilities, provided that the obligations in question arise from the package holiday contract or are obligations regarded as being ancillary to the services sold or offered for sale by the organiser under that contract. ( 38 )

66. Thus, if the porter services, the maintenance of facilities or the conducting of guests to reception are either services ancillary to the accommodation service or services directly stipulated in the contract, the organiser must be liable where the hotel porter damages or loses luggage, assaults a guest whilst performing the obligation of conducting him to his room or to reception, burns a guest by spilling soup or assaults a guest whilst providing table service.

67. In all those scenarios, it must clearly be found that the contract was improperly performed and that, therefore, the actions of the hotel employee must be attributed to the supplier of services within the context of the system of liability of the package travel organiser under Article 5 of Directive 90/314.

68. However, the organiser cannot be held liable for damage suffered by the consumer, for the purposes of Article 5(2) of that directive, if the employee of a hotel assaults a hotel guest outside his working hours or on a day on which that employee is on leave. In those circumstances, this is therefore not damage caused in the performance of the contractual obligations by the supplier.

69. Therefore, pursuant to Article 5(1) of Directive 90/314, the organiser must be liable, on the one hand, for acts and omissions of an employee of a supplier of services in the performance of the contractual obligations which are specified in that contract, as defined in Article 2(5) of that directive and, on the other hand, for the acts and omissions of that employee in the performance of the obligations which are regarded as being ancillary to the services referred to in Article 2(1)(b) of the Directive.

70. Having thus clarified the circumstances in which the acts or omissions of an employee of a supplier of services may be attributed to his employer/supplier of services in the light of the system of liability established by Directive 90/314, one final question remains to be considered: what is the distinction between a ‘case of force majeure’ and an ‘event which the organiser … or the supplier of services, even with all due care, could not foresee or forestall’?

3. The distinction between a ‘case of force majeure’ and an ‘event which the organiser … or the supplier of services, even with all due care, could not foresee or forestall’

71. Article 5(2) of Directive 90/314 provides that the organiser (and/or retailer) is liable for the damage resulting for the consumer from the failure to perform or the improper performance of the contract unless such failure to perform or improper performance is attributable neither to any fault of his nor to that of another supplier of services because one of the defences to liability contained in that provision applies to him. The defence set out in the third indent of Article 5(2) of that directive covers situations in which the failures that occur in the performance of the contract are due to a case of force majeure or to an event which the organiser or the supplier of services, even with all due care, could not foresee or forestall. ( 39 )

72. In her written observations, X claims that the two situations provided for in the third indent of Article 5(2) must be read together.

73. I do not share that view.

74. In the first place, it is clear from the wording of Article 5(2) of Directive 90/314 and from the use of the disjunctive conjunction ‘or’ that the EU legislature sought to differentiate between, on the one hand, a case of force majeure and, on the other hand, an event which the organiser or supplier of services, even with all due care, could not foresee or forestall.

75. In the second place, I note that ‘force majeure’ (first part of the third indent of Article 5(2)) is defined in point (ii) of the second subparagraph of Article 4(6) of Directive 90/314 as meaning ‘unusual or unforeseeable circumstances beyond the control of the party by whom it is pleaded, the consequence of which could not have been avoided even if all due care had been exercised’. ( 40 ) That definition contains three conditions which must be satisfied cumulatively for the organiser to avoid liability.

76. This is not, however, the case as regards the event referred to in the second part of the third indent of Article 5(2) of Directive 90/314. Here, the EU legislature used the disjunctive conjunction ‘or’, which means that the organiser may avoid liability if he can show that neither he nor his supplier of services could foresee or (not cumulatively but alternatively) that they could not forestall the event, by taking all necessary steps to prevent it. In other words, the organiser can avoid liability only where it is proven that that event was either unforeseeable or unavoidable by him or by the supplier of services.

77. It is therefore clear that the two situations provided for in the third indent of Article 5(2) of Directive 90/314 are different and that, in the present case, a case of force majeure should be ruled out.

4. The event referred to in the second part of the third indent of Article 5(2) of Directive 90/314

78. The second part of the third indent of Article 5(2) of Directive 90/314 covers those situations in which the failures that occur in the performance of the contract are due to ‘an event which the organiser … or the supplier of services, even with all due care, could not foresee or forestall’.

79. In the present case, I take the view that the rape and assault that N, a hotel employee, committed on X, a hotel guest, in the performance by that employee of the contractual obligation of conducting that guest to reception is not an ‘event’ within the meaning of that provision.

80. The term ‘event’ contained in that provision cannot cover the acts or omissions of an employee, including wrongful acts committed intentionally, of a supplier of services in the performance of the obligations arising from the package travel contract. For those acts or omissions to be regarded as an event within the meaning of the second part of the third indent of Article 5(2) of Directive 90/314, there would have to be an event outside the organisational structure of the supplier of services or an objective factor. That concept of an ‘event’ cannot under any circumstances include wrongful acts committed intentionally which, in themselves, constitute the failure to perform or the improper performance of the contractual obligations. It would even be illogical to examine whether the intentional acts of a supplier of services can be foreseen or forestalled, including where those acts are committed by its employees.

81. Thus, even though, as I have previously set out in point 56 of this Opinion, it is not possible, within the meaning of Directive 90/314, to regard an employee of a supplier of services as being per se the supplier of services, the actions of that employee must be attributed to his employer/supplier of services and to the service organiser provided that they occurred in the performance of the obligations arising from the package travel contract. In those circumstances, such actions fall outside the scope of the concept of an ‘event’ within the meaning of the second part of the third indent of Article 5(2) of Directive 90/314. In other words, the fault of an employee of a supplier of services entailing the failure to perform or the improper performance of the contract must be treated as a fault of the supplier of services. There is therefore no need to apply the defence laid down in that provision.

82. In those circumstances, the rape and assault that N committed on X should be regarded as an act that must be attributed to the hotel, with the result that Kuoni cannot avoid liability as the package travel organiser.

83. This interpretation is the only one capable of ensuring a high level of protection for consumers and of preventing that level of protection from being significantly reduced in cases of serious misconduct on the part of the employees of suppliers of services. If an alternative interpretation were to be accepted, such serious misconduct could then be regarded as being an ‘unforeseeable or unavoidable’ event within the meaning of the second part of the third indent of Article 5(2) of Directive 90/314.

84. In view of the answer that I suggest be given to part (a) of the first question, there is no need to answer the question on the criteria for assessment of the unforeseeable or unavoidable nature of the event referred to in the second part of the third indent of Article 5(2) of Directive 90/314.

VI. Conclusion

85. In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Supreme Court of the United Kingdom as follows: (1) An employee of a supplier of services in the context of a package travel contract cannot be regarded per se as a supplier of services for the purposes of applying the second part of the third indent of Article 5(2) of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. (2) The organiser must be liable for acts and omissions of an employee of a supplier of services in the performance of the contractual obligations which are specified in the contract, as defined in Article 2(5) of that directive, as well as for the acts and omissions of that employee in the performance of the obligations which are regarded as being ancillary to the services referred to in Article 2(1)(b) of the Directive. Accordingly, the defence to liability provided for in the second part of the third indent of Article 5(2) of Directive 90/314 in relation to a package travel organiser cannot be applied where the failure to perform or the improper performance of the contract which that organiser has concluded with a consumer is the result of the acts of an employee of a supplier of services performing that contract.

( 1 ) Original language: French.

( 2 ) Samuel, G., and Rinkes, J.G.J., ‘The English law of obligations’, Gemeinsames Privatrecht in der Europäischen Gemeinschaft, P.-C. Müller-Graff (ed.), Nomos, Baden-Baden, 1999, pp. 163 to 381, in particular pp. 206 and 207. See also Samuel, G., and Rinkes, J.G.J., The English law of obligations in comparative context, Nijmegen, Ars Aequi Libri, 1991, pp. 4 to 21.

( 3 ) See third recital of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).

( 4 ) 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).

( 5 ) SI 1992/3288.

( 6 ) UK Public General Acts 1982 c. 29.

( 7 ) It is apparent from the order for reference that the Supreme Court of the United Kingdom granted leave to ABTA Ltd (Association of British Travel Agents) to intervene in the appeal before it.

( 8 ) It is, in my view, important to set out the reasons why the referring court asks this second question, which appears to have its origin in the dissenting opinion of Longmore LJ, to which reference is made in point 21 of this Opinion. It is clear from the passages of that opinion that are reproduced in the request for a preliminary ruling that, according to the author of that opinion, the hotel supplies the service of assisting its guests and performs that service by means of its employees. Thus, Longmore LJ explains that the question whether N was also supplying that service is critical when it comes to considering the defences provided for in Article 5(2) of Directive 90/314. If the hotel were the sole supplier, Kuoni would very likely not bear any liability, since the improper performance would be attributable neither to Kuoni nor to the hotel. The improper performance would be due to an event which neither Kuoni nor the hotel, even with all due care, could foresee or forestall. The hotel had not failed to seek references for N and had no reason to suppose, taking into account his professional background or for any other reason, that he would rape a guest. If, however, N were the supplier of the service of assisting, rather than or as well as the hotel, then he (as that supplier) could have foreseen or forestalled his own criminal act.

( 9 ) See Article 100a(3) of the EEC Treaty, now, after amendments, Article 114(3) TFEU.

( 10 ) See, in this regard, Opinion of Advocate General Tizzano in Leitner (C‑168/00, EU:C:2001:476, points 2 and 3).

( 11 ) See third recital of Directive 90/314.

( 12 ) See judgment of 8 October 1996, Dillenkofer and Others (C‑178/94, C‑179/94 and C‑188/94 to C‑190/94, EU:C:1996:375, paragraph 39). See also fourth recital of Directive 90/314.

( 13 ) See, inter alia, judgments of 8 October 1996, Dillenkofer and Others (C‑178/94, C‑179/94 and C‑188/94 to C‑190/94, EU:C:1996:375, paragraph 39); of 12 March 2002, Leitner (C‑168/00, EU:C:2002:163, paragraph 22); and of 16 February 2012, Blödel-Pawlik (C‑134/11, EU:C:2012:98, paragraph 24); and order of 16 January 2014, Baradics and Others (C‑430/13, EU:C:2014:32, paragraph 36).

( 14 ) See Machnikowski, P., and Szpunar, M., ‘Chapter 8: Remedies. General Provisions’, Contract II. General Provisions, Delivery of Goods, Package Travel and Payment Services, Research Group on the Existing EC Private Law (Acquis Group), Sellier, Munich, 2009, pp. 401 to 404, in particular p. 403, Art. 8:101, 5.

( 15 ) This definition of the term ‘package’ clarifies the scope of the rules on the performance and non-performance of the package travel contract. See Machnikowski, P., ‘Chapter 7: Performance of obligations. Specific Provisions – Part E: Package Travel Contracts’, Contract II. General Provisions, Delivery of Goods, Package Travel and Payment Services, op. cit., pp. 380 to 398, in particular p. 384, Art. 7:E-02, 6.

( 16 ) Article 1 of Directive 90/314 refers to ‘packages sold or offered for sale in the territory of the [Union]’. The term ‘organizer’ is defined in Article 2(2) of Directive 90/314 as ‘the person who, other than occasionally, organizes packages and sells or offers them for sale, whether directly or through a retailer’. I note, in this regard that, since the English law of obligations draws a clear distinction between the sale of goods and the supply of services, the distinction between fault and strict liability is largely determined by the distinction between contracts for services (Article 13 of the 1982 Act) and contracts for the supply of goods (Article 14 of the 1982 Act). See, in that connection, Samuel, G., and Rinkes, J.G.J., ‘The English law of obligations’, loc. cit., p. 209, and Montanier, J.-C., and Samuel, G., Le contrat en droit anglais, PUG, 1999, p. 92. However, as I pointed out in the introduction to this Opinion, it is just such disparities between national rules and practices on package travel which were identified by the legislature in Directive 90/314 in order to justify the establishment of a ‘minimum of common rules’ for all Member States. See second recital of that directive.

( 17 ) ‘Consumer’ within the meaning of Directive 90/314 is defined in Article 2(4) of that directive.

( 18 ) See also eighteenth recital of Directive 90/314.

( 19 ) The eighteenth recital states, inter alia, that the organiser party to the contract should be liable to the consumer for the proper performance of the obligations arising from the contract.

( 20 ) Opinion of Advocate General Tizzano in Leitner (C‑168/00, EU:C:2001:476, point 4). Emphasis added.

( 21 ) By treating the services offered for sale to the consumer as a whole, the classification as the ‘sale of services’ used by Directive 90/314 in Article 1 and Article 2(2) thereof makes it easier for the consumer to take action in a situation in which he is faced with the non-performance or the improper performance of the contract by providing him with a ‘single … interlocutor regardless of the non-performed or improperly performed service(s)’. See, to that effect, Poillot, E., ‘La vente de services en droit communautaire (directive 90/314/CEE sur les voyages, vacances et circuits à forfait)’, Uniform Terminology for European Contract Law, Nomos, 2005, pp. 359 to 382, in particular p. 381. See also Machnikowski, P., ‘Chapter 7. Performance of obligations. Specific Provisions – Part E: Package Travel Contracts’, op. cit., pp. 380 to 398, in particular p. 383, Art. 7:E-02, 3.

( 22 ) See also point 43 of this Opinion.

( 23 ) See also point 34 of this Opinion.

( 24 ) According to Article 2(5) of Directive 90/314, for the purposes of that directive, ‘contract’ means the agreement linking the consumer to the organiser and/or retailer.

( 25 ) Thus, the non-performance or the improper performance of the contractual obligations may trigger the liability of the organiser. See, in this regard, Machnikowski, P., op. cit., in particular p. 402, Art. 8:101, 3. See also Kleinschmidt, J., ‘Article 8:101: Remedies Available’, Commentaries on European Contract Laws, Nils, J., and Zimmermann, R. (eds.), Oxford, p. 1108.

( 26 ) Emphasis added. It must be observed that Directive 90/314 does not contain any provisions concerning the applicable law. However, Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6) guarantees, in principle, the application of the law of the consumer’s habitual place of residence.

( 27 ) Article 5(2) and(3) and Article 8 of Directive 90/314 are regarded in legal literature as mandatory rules. See Machnikowski, P., op. cit., in particular p. 465, Art. 8:E-01, 2.

( 28 ) See also nineteenth recital of Directive 90/314.

( 29 ) See point 38 of this Opinion.

( 30 ) See points 36 to 43 of this Opinion.

( 31 ) I should point out that a Member State may, in principle, provide for a greater level of protection. When transposing Directive 90/314, Member States could therefore provide for more stringent defences than those laid down in Article 5(2) of that directive.

( 32 ) See point 13 of this Opinion. It is apparent from the legal context set out in the order for reference that, under Article 13 of the 1982 Act, the supplier of services is required to carry out the services promised under the contract with reasonable skill and care.

( 33 ) See, inter alia, judgment of 16 July 2020, Novo Banco (C‑253/19, EU:C:2020:585, paragraph 17 and the case-law cited).

( 34 ) The English language version of the term ‘supplier of services’ appears to be used in that same sense in other language versions, including the Spanish (‘prestador de servicios’), German (‘Dienstleistungsträger’), French (‘prestataire de services’), Italian (‘prestatore di servizi’), Polish (‘usługodawca’), Portuguese (‘prestador de serviços’) and Romanian (‘furnizor de servicii’) language versions.

( 35 ) See also eighteenth recital of Directive 90/314.

( 36 ) See also point 40 of this Opinion.

( 37 ) These obligations ancillary to the accommodation or transport services stem from the very nature of its services.

( 38 ) This is the case, inter alia, with a transfer service from the hotel to an airport provided by the hotel’s drivers/employees.

( 39 ) It goes without saying that, even though Directive 90/314 does not expressly so provide, it is for the organiser or the supplier of services to furnish proof in support of the defences on which it relies. See, in this regard, Rüfner, T., ‘Article 8:108: Excuse Due to an Impediment’, Commentaries on European Contract Laws, Nils, J., and Zimmermann, R. (eds.), Oxford, pp. 1164 to 1177, in particular p. 1174.

( 40 ) Emphasis added.