Price Reduction and Compensation for Damages according to the New PTD Michael Wukoschitz1 Introduction; I. Price Reduction; 1) General Remarks; 2) Calculation of the Reduction; 3) Defence of the Organiser; II. Compensation for damages; 1) Subject of compensation; 2) Burden of proof; 3) Calculation of damages; III. Grounds of Exoneration / Defence of the Organiser; 1) Exhaustive list of exemptions; 2) “Attributable to the traveller”; 3) “Attributable to a third party unconnected with the provision of the travel services”; 4) “Due to unavoidable and extraordinary circumstances”; IV. Limitation of Liability; 1) International conventions binding the Union; 2) International conventions not binding the Union; 3) Contractual limitation of liability; V. Relation to Passenger Rights Regulations; VI. Limitation Period; VII. PTD Revision; VIII. Implementation of Article 14 in selected Member States; 1) Austria; 2) Germany; 3) Malta; 4) Spain; 5) United Kingdom; IX. Summary; INTRODUCTION Article 14 of the Directive provides for !nancial claims of the traveller in case of lack of conformity. "e term “lack of conformity” is de!ned in Article 2 (13) as “a failure to perform or improper performance of the travel services included in a package”. "e CJEU has clari!ed that the !nding of a lack of conformity must be carried out objectively, taking into account the organiser’s obligations under the package travel contract.2 ‘Lack of conformity’, therefore, means that the services provided deviate objectively from those contractually owed. While it is rather easy to determine when a travel service included in the package has not 1 President Emeritus of International Forum of Travel and Tourism. 2 CJEU judgment of 12 Jan. 2023 in case C-396/21 – FTI Touristik, ECLI:EU:C:2023:10, margin 39; judment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 45; also: HG Wien (Commercial Court Vienna), judment of 28 Feb. 2024, 1 R 2/24a, ECLI:AT:LG00007:2024:00100R00002.24A.0228.000; HG Wien (Commercial Court Vienna), judment of 26 Feb. 2024, 50 R 183/23b, ECLI:AT:LG00007:2024:05000R00183.23B.0226.000.
been performed at all (e.g. no #ight or accommodation has been provided) it is much harder to identify “improper performance”. No doubt though, that a service is not performed properly if it is lacking an explicitly promised quality (e.g. despite being situated “directly at the beach” as stipulated the hotel turns out to be 5 kms away from the next beach).3 Austrian and German courts regarded the content of brochures of the organiser and other kinds of descriptions of the services provided by the organiser including online descriptions and pictures as such explicit promises.4 However, the organiser can only be regarded to be bound by his own descriptions but not by descriptions provided by other parties including the suppliers themselves: retailers usually cannot be regarded to be authorised to amend or change descriptions provided by the organiser. Apart from non-compliance with an explicitly promised quality, it has to be regarded “improper performance” if a service doesn’t comply with the implied terms of the contract or is not suitable for the purpose of the package (e.g.: relaxation, adventure, education, etc. ). Negative circumstances that are not necessarily to be expected must be expressly stated.5 "erefore, stating that the hotel is located at a short distance from the airport, for example, is not su$cient to indicate aircraft noise. When evaluating whether the performance of a certain service has been “improper” the applicable standards can make a big di%erence. According to recent Austrian case law, the nature of the services owed is determined according to the service description provided by the organizer, as well as according to common understanding and the national category customary at the destination.6‘ With regard to safety standards Austrian and German courts tend to more or less base their decisions on “reasonable expectations” of the consumer and regard compliance with local standards as a fundamental requirement.7 However, the German Supreme Court explicitly held that safety standards for hotel rooms are determined by the laws applicable at the location of the hotel.8 U.K. Courts 3 See Grant/Mason/Bunce, Holiday Law6, 5-013. 4 OGH (Austrian Supreme Court) 20.10.2005, 3 Ob 24/05h and others more; BGH 14.12.1999, X ZR 122/97 and others more. 5 OLG Celle (Higher Regional Court of Celle) judgment of 15 Oct. 2020, 11 U 175/19, RRa 2021, 62. 6 HG Wien (Commercial Court Vienna), judment of 28 Feb. 2024, 1 R 2/24a, ECLI:AT:LG00007:2024:00100R00002.24A.0228.000; HG Wien (Commercial Court Vienna), judment of 26 Feb. 2024, 50 R 183/23b, ECLI:AT:LG00007:2024:05000R00183.23B.0226.000. 7 OGH 07.06.2005, 5 Ob 108/05a; BGH 18.07.2006, X ZR 142/05; 8 BGH judgment of 25 Jun. 2019, X ZR 166/18, RRa 2019, 262. 346 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
generally rather strictly apply local standards with the burden of proof on the claimant.9 According to Austrian and German case law, any circumstance which falls within the general risks and hazards in life such as the hazards usually connected to travel (like getting an infection,10 becoming victim of a car accident or a pickpocket) or typical for the activities carried out at the destination (swimming, skiing, etc.) does not constitute a lack of conformity.11 Same applies to countryspeci!c conditions like a more exuberant street life with music until late night in southern countries, left-hand tra$c in the U.K., rainy seasons in Southeast Asia or local dress codes. "ese di%erences cannot be regarded as any detriment but are the reason for travelling: “newness rather than sameness is the essence of tourism”.12 If the continuation of the trip becomes unreasonable because of events like terrorist threats, pandemic outbreaks, outbreaks of a civil war or similar, a distinction has to be made with regard to whether the particular event had been foreseeable at the time of booking. If it had been foreseeable, it can neither be regarded a “lack of conformity” nor an “extraordinary circumstance” because the traveller had (at least: implicitly) accepted the risk when concluding the contract. If it had not been foreseeable and there is a real hazard and not only a subjective perception of such hazard, such event can constitute a lack of conformity – at least if it occurs at the traveller’s destination or its immediate vicinity.13 I. PRICE REDUCTION 1) General Remarks In case of a lack of conformity, Article 14 (1) provides for a right to an appropriate price reduction for the period e%ected by the lack of conformity. "is concept of price reduction has a long tradition in Austrian and German law and has led to extensive case law. In its judgment in case C-469/24 - Tuleka,14 the CJEU ruled that the claim for price reduction only serves to restore the 9 See Wilson v Best Travel [1993] 1 All ER 353; Lougheed v On the Beach [2014] EWCA Civ 1538; Kerr v !omas Cook [2015] NIBQ 9. 10 See most recently: German Supreme Court (BGH) judgment of 20 Jan. 2026, X ZR 15/25, ECLI:DE:BGH:2026:200126UXZR15.25.0; likewise: BGH judgment of 18 Feb. 2025, X ZR 68/24, ECLI:DE:BGH:2025:180225UXZR68.24.0. 11 BeckOGK/Sorge §651i BGB para 150 and following. 12 John Downes, IFTTA Journal of Travel and Tourism Law 12/00, 29. 13 See Article 12 (2) of the Directive. 14 CJEU judment of 23 Oct. 2025 in case C-469/24 – Tuleka. 347 ARTICLE 14 | MICHAEL WUKOSCHITZ
contractual balance between travel organisers and travellers and not to penalise those organisers.15 "e reduction in the price of the package must rather correspond to the value of the travel services for which a lack of conformity has been found.16 Nevertheless, the price reduction may correspond to a full refund of the price of the package holiday concerned where that lack of conformity is so serious that, having regard to its purpose, that package holiday is objectively no longer of interest to the traveller, even if a traveller has been provided with some of the services.17 2) Calculation of the Reduction In the 1980s, the 24th Civil Chamber of the Regional Court of Frankfurt/ Main has developed a scheme for the assessment of an appropriate price reduction. "e scheme is based on the chamber’s respective judgements but not quoting any of these judgements. It has become famous as the “Frankfurt List”18 and is assigning certain percentages of price reduction to typical kinds of lack of performance (like delay of the #ight, lower category of the hotel, dirty room, spoiled food, etc.). "e following short excerpt may give a !rst impression: I. Accomodation Lack of Conformity Percentage Remarks deviation from booked object 10-25 according to distance di%erent situation (distance to beach) 5-15 di%erent kind of accomodation (hotel room instead of bungalow; di%erent #oor) 5-10 room features • room area too small • missing balcony • missing seaview • missing (private) bathroom/toilet • … 5-10 5-10 5-10 15-25 … if promised / depending on season if promised if booked … 15 CJEU judment of 23 Oct. 2025 in case C-469/24 – Tuleka, margin 60. 16 CJEU judgment of 12 Jan. 2023 in case C-396/21 – FTI Touristik, margin 39; judment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 47. 17 CJEU judment of 23 Oct. 2025 in case C-469/24 – Tuleka, margin 51. 18 Published in NJW 1985, 113. 348 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
In most cases, the list is indicating a frame of percentages for the appropriate price reduction rather than a single number. Immediately after its publication, the Frankfurt List was heavily criticized as being far too schematical and not taking into regard the broad variety of cases.19 Applying the list could infringe justice in the individual case. A lot of German courts therefore explicitly refused to apply the Frankfurt List.20 Meanwhile a lot of other price reduction lists have been published like a Kempten List,21 a Mainz List,22 a Vienna List23 and others more.24 "ese lists di%er from the Frankfurt List in so far as they are referring to particular judgements which are quoted by their !le numbers and therefore allow to look up the particular circumstances of the respective cases. Other than the Frankfurt List, they are updated regularly. However, all these lists have been regarded as not being any kind of legal source and therefore are not binding for the courts.25 "eir main purpose is merely to provide a rough orientation on what percentage of price reduction might be appropriate. "e CJEU’s view that the price reduction solely serves to restore the contractual balance requires national courts to exercise sound judgement in each case as the price reduction must correspond to the value of the services for which a lack of conformity has been found and the assessment of whether a price reduction is appropriate must be carried out objectively, which also precludes a schematical application of any lists or tables.26 Apart from particular cases where it may be reasonable to leave the calculation of the appropriate price reduction to an expert, in Austrian and German court practice, the amount granted usually is subject to judicial discretion. In principle, the full package price serves as the calculation base for the price reduction.27 Booking fees of retailers or costs of travel insurances, however, do not form parts of the package price and therefore are not subject to the price reduction.28 19 Müller-Langguth, NJW 1985, 900 and 1887. 20 OLG Hamburg, NJW 1985, 3030; LG München 12.02.1987, 31 S 14640/86; OLG Celle 24.05.1995, 11 U 144/94; 21 Recent update available at https://reiserechtfuehrich.!les.wordpress.com/2018/07/kemptener-tab-7-20182.pdf. 22 First published by Kaller, Reiserecht [1999]. 23 Lindinger, Wiener Liste zur Reisepreisminderung3 [2016]; most recent update in ZVR 2018/118. 24 Including a „Würzburg List“ regarding price reduction for cruises, available at https://würzburger-tabelle.de/. 25 OGH 03.11.2005, 6 Ob 419/03v; Wukoschitz, Reisepreisminderungsmythos “Frankfurter Tabelle”, RdW 2006, 488. 26 Likewise: OLG Celle (Higher Regional Court of Celle) judgment of 15 Oct. 2020, 11 U 175/19, RRa 2021, 62. 27 Tonner, MüKo6 § 651d BGB Rn 19; HG Wien (Commercial court Vienna) judment of 5 Dec. 2024, 50 R 179/24. 28 HG Wien (Commercial Court Vienna) judgment of 24 May 2004, 50 R 39/04y. 349 ARTICLE 14 | MICHAEL WUKOSCHITZ
According to the clear wording of Article 14 (1) the right of price reduction only applies “for the period during which there was lack of conformity”. If the lack of conformity only a%ects a certain part of the package only the proportionate part of the package price therefore will be subject to reduction.29 If a package consists of clearly separate parts (like a sightseeing roundtrip and a beach holiday thereafter) and the individual prices of the parts are disclosed it can be considered to only take the price of the part a%ected by the lack of conformity as calculation base for the price reduction. Where all of the travel services provided to a traveller lack conformity and the travel organiser does not prove that that lack of conformity is attributable to that traveller, he or she is entitled to a full refund from that organiser of the price of the package concerned.30 "e same applies, where the lack of conformity is so serious as to render the services that have been provided of no interest and of no value in the light of the purpose that package, that lack of conformity is in fact equivalent to a failure to perform that package.31 3) Defence of the Organiser "e only defence the tour organiser can raise against a claim for price reduction is that the lack of conformity was attributable to the traveller himself.32 "is is a di%erent dogmatic approach to that of German doctrine, which denies the existence of a defect, i.e. a lack of conformity, in circumstances attributable to the traveller.33 "e Directive, on the other hand, requires a lack of conformity for a claim for price reduction, but precludes this claim if the lack of conformity is attributable to the traveller. If there is no lack of conformity from the outset, the question of attribution does not even arise. "e defence doesn’t only apply in cases when the traveller actively caused the lack of conformity (e.g. by damaging the air condition or not being present on time for an airport shuttle) but also if the traveller is not willing or able to receive a service included in the package due to reasons from his sphere (like illness) – even if the organiser excludes the traveller from travel services in order to protect other travellers or sta% members.34 29 OGH 25.02.2004, 3 Ob 271/03d; Tonner, MüKo6 § 651d BGB Rn 19. 30 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 48. 31 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 49. 32 Article 14(1) PTD. 33 Most recently: Führich, P#ichtwidrigkeit bei Pauschalreisen als Reisemangel und Umfeldrisken des Reisenden, RRa 2026, 7 [14]. 34 BGH judgment of 20 Jan. 2026, X ZR 15/25, ECLI:DE:BGH:2026:200126UXZR15.25.0 350 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
Moreover, I would say that a lack of conformity becomes attributable to the traveller if – despite his obligation according to Article 13 (2) he failed to inform the organiser of the lack of conformity without undue delay and thus prevented the organiser from taking appropriate measures to remedy the lack of conformity. From the time when the lack of conformity could have been remedied if notice had been given the traveller shall therefore not be entitled to price reduction. "is supported by the observations of the CJEU, according to which a failure to communicate a lack of conformity to the organiser may be taken into account when determining the reduction in the price of that package where such notice could have reduced the duration of the lack of conformity perceived.35 If the traveller by his behaviour (being heavily drunk, molesting or endangering other travellers or suppliers’ sta%, breaking local laws or threatening public order at the destination) or condition (infectious disease) makes it unreasonable for the organiser to continue with the provision of the travel services, the resulting (partial) non-performance of these services will also be attributable to the traveller who therefore will not be entitled to price reduction in such cases.36 On the other hand, a lack of conformity caused by a third party unconnected with the provision of the travel services included in the package travel contract can still make the organiser liable to price reduction. If therefore relaxation in a hotel promised to be “quiet and peaceful” is disturbed by construction works from the neighbouring area, the traveller can claim for an appropriate price reduction.37 Even if the lack of conformity is due to unavoidable and extraordinary circumstances the traveller is entitled to price reduction.38 "is, for example, applies when a cruise ship cannot access a certain port because of weather conditions or when the booked accommodation cannot be provided because the hotel was destroyed by a Tsunami39 or a hurricane.40 35 CJEU judgment of 12 Jan. 2023 in case C-396/21- Tez Tour, margin 40. 36 See BGH judgment of 20 Jan. 2026, X ZR 15/25 37 OLG Celle (Higher Regional Court of Celle) order of 24 Oct. 2019, 11 U 132/19; LG Frankfurt/Main (Regional Court of Frankfurt/Main) judgment of 22 May 2019, 2-24 O 106/17. 38 CJEU judgment of 12 Jan. 2023 in case C-396/21- Tez Tour; Tonner, MüKo6 § 651c BGB Rn 18. 39 OGH 30.01.2007, 10 Ob 2/07b. 40 LG Klewe, RRa 2000, 100. 351 ARTICLE 14 | MICHAEL WUKOSCHITZ
II. COMPENSATION FOR DAMAGES 1) Subject of compensation According to Article 14 (2) the traveller has a right to be compensated for any damage which he sustains as a result of any lack of conformity. According the wording of the provision (arg. “as a result of”) not the lack of conformity itself is regarded as damage but only the detriments caused by the lack of conformity. "is is con!rmed by the CJEU ruling in Tuleka, according to which the provision concerns compensation for damage sustained by the travellers concerned as a result of the lack of conformity of the services provided.41 Punitive or exemplary damages may not be awarded.42 Surprisingly – despite the clear judgment of the CJEU in the Leitner Case43 and other than the Commission Draft44 the Directive does not explicitly mention immaterial damage like loss of holiday enjoyment as part of the damage to be compensated. However, there is a reference made to this kind of damage in Recital 34 according to which compensation in case of substantial problems in the performance of the relevant travel services should also cover non-material damage such as compensation for loss of holiday enjoyment. As the Directive due to its scope doesn’t only apply to leisure travel but also to business travel (unless subject to a general agreement45) the question arises whether business travellers can sue for any kind of “loss of enjoyment”. Probably this would not be appropriate. It seems more reasonable to limit this kind of claims to leisure travel only. 2) Burden of proof In order to get compensated the traveller will have to produce evidence • that a travel service has not been performed at all or has been performed in an improper way; and • that this lack of conformity has caused a particular damage.46 41 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 57. 42 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 60. 43 CJEU 12.03.2002, C-168/00, Leitner v TUI Deutschland. 44 COM [2013] 512 !nal. 45 Article 2 (1) b. 46 Tonner, Münchener Kommentar BGB § 651n, margin 80; Staudinger in Führich/Staudinger9 § 22 margin 49; Szymszon, "e Issues of Evidence Facilitation in the Regulation of Package Travel and Hotel Services in the Context of Protecting Travellers and Tourists, Folia Turistika 57-2021, 66. 352 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
"e mere fact that a damage occurred during the journey does not in itself constitute a lack of conformity.47 Even if the package organiser has a contractual secondary obligation to ensure the safety and physical integrity of the traveller, the associated requirements must not be excessive.48 Obvious hazards therefore do not give rise to any liability.49 It could be argued that the Directive does not provide for harmonisation of the burden of proof and that its distribution therefore remains subject to national law. However, the Directive expressly provides for the organiser to bear the burden of proof for exceptions to liability.50 It can therefore reasonably be inferred that the traveller bears the burden of proof for the preconditions of liability, i.e. a lack of conformity and its causality for the damage. "is is also in line with the principle that it is generally for the party asserting a fact to prove it. As regards the price reduction, it is obvious that it is for the traveller to prove the lack of conformity on which the claim is based. "ere is therefore no reason for a di%erent distribution of the burden of proof in relation to claims for damages. 3) Calculation of damages Like in case of price reduction, it is hard to determine, how a compensation for loss of holiday enjoyment has to be calculated. In the famous British case of Jarvis v Swans Tours,51 Lord Denning MR didn’t give the least clue on how he calculated the GBP 125 awarded to Mr. Jarvis. In Germany, Ernst Führich has suggested to calculate the compensation according to the formula: „compensation = (package price ÷ number of days) × number of days a%ected × percentage of price reduction“.52 "e Vienna Higher Regional Court, however, has rejected this approach and pointed out that if applied to high-priced packages the Führich formula could lead to a disproportionate result. "e amount granted for a day of lost holiday enjoyment should not exceed the average amount granted for a day of light pain and su%ering in personal injury cases.53 47 OLG Stuttgart (Higher Regional Court of Stuttgart) judgment of 10 Nov. 2023, 3 U 23/23, RRa 2024, 66. 48 OGH order of 8 Apr. 2020, 5 Ob 47/20b, ECLI:AT:OGH0002:2020:0050OB00047.20B.0408.000. 49 See OLG Wien (Higher Regional court of Vienna) judgment of 23 Nov. 2018, 3 R 49/18z, RRa 2019, 42 (wetness around the pool); LG Innsbruck (Regional Court of Innsbruck) judgment of 14 Sep. 2018, 5 R 68/18p, RRa 2019, 92 (level di%erence with steps in the terrace area). 50 Article 14(3): „"e traveller shall not be entitled to compensation for damages if the organiser proves …”. 51 Jarvis v Swans Tours [1972] EWCA Civ 8 52 Führich, Reiserecht7 § 11 Rn 66. 53 OLG Wien 27.02.2007, 4 R 153/06h. 353 ARTICLE 14 | MICHAEL WUKOSCHITZ
At the end – and again like with regard to price reduction – the determination of the amount granted for immaterial damage will be left to judicial discretion. However, the clari!cation of the CJEU that the purpose of Article 14(2) is to obtain compensation from the organiser for the damage sustained by the traveller concerned as a result of the lack of conformity of the services provided54 but not to enable the organisers to be penalised,55 suggests that a certain degree of restraint is required when assessing the amount. Insofar as non-material aspects (displeasure) have already been taken into account in the price reduction, there is therefore no additional claim for damages56 as any overcompensation would be in contradiction to the aim of restoring the contractual balance between travel organisers and travellers.57 III. GROUNDS OF EXONERATION / DEFENCE OF THE ORGANISER 1) Exhaustive list of exemptions According to Article 14 (3), in case of a damage resulting from a lack of conformity the organiser can only be released from paying compensation to the traveller if he can prove that one of the following three exemptions applies: • the lack of conformity was attributable to the traveller; • it was to a third party unconnected with the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable; or • it was due to unavoidable and extraordinary circumstances. "e list is exhaustive and unlike the PTD 1990 it doesn’t provide an exemption in cases when the lack of conformity occurred due to „an event which the organizer and/or retailer or the supplier of services, even with all due care, could not foresee or forestall“.58 "e quoted text passage was interpreted as the proof of absence of fault.59 "e missing of this exemption in Article 14 (3) therefore means that absence 54 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 57. 55 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 58. 56 OGH judgment of 23 Jan. 2007, 2 Ob 79/06s, ECLI:AT:OGH0002:2007:0020OB00079.06S.0123.000. 57 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, ECLI:EU: C:2025:833, margin 60. 58 Article 5 (2) of Directive 90/314/EEC on package travel, package holidays and package tours. 59 BGH 09.11.2004, X ZR 119/01 – Reitunfall II. 354 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
of fault isn’t enough any more to avoid liability. In other words: under the new Directive, the liability of the organiser has turned from a fault liability with a reversed burden of proof to an absolute liability with only the aforementioned exemptions as the CJEU explicitly clari!ed.60 2) “Attributable to the traveller” With regard to lack of conformity attributable to the traveller, the same principles apply as for the exemption from price reduction using identical wording.61 In principle, the following scenarios are covered by the exemption • the traveller has caused the lack of conformity by his own action or omission; • a travel service could not be performed (properly) because of a reason stemming from the traveller’s sphere of risk (illness; accident; etc.); • the traveller has failed to inform the organiser of a lack of conformity perceived at the spot and has thus prevented the organiser from remedying same within appropriate time; • the traveller’s behaviour or condition has made it unreasonable for the organiser to continue with the provision of the travel services. In the Tuleka judgment, the CJEU correctly pointed out that the organiser is not required to prove any fault of the traveller.62 3) “Attributable to a third party unconnected with the provision of the travel services” "e exemption covers lack of conformity caused by another traveller or any person with no connection to the travel services at all. "e organiser therefore cannot be held liable for a theft at a market, a sexual assault at the beach or a car accident if such events are caused by persons unconnected with the provision of the travel services. However, even if a certain person is involved in the provision of travel services the exemption could be applied as far as the respective person’s harmful conduct has no connection to the provision of the services (e.g. a member of the cleaning sta% injuring a traveller after o$cial hours in the bar). 60 CJEU judgment of 12 Jan. 2023 in case C-396/21 – FTI Touristik, margin 25, and judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, margin 34. 61 See I. (2) above. 62 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, margin 36. 355 ARTICLE 14 | MICHAEL WUKOSCHITZ
"e damage in such cases falls outside the scope of duties conferred on the respective person as an agent of the organiser or one of his suppliers.63 Other than the previous PTD,64 Article 14 (3) doesn’t explicitly refer to a fault of a supplier of travel services included in the package as a reason for liability. Anyway, there is no doubt that such fault will make the lack of conformity attributable to a party who was connected to the provision of the travel services and therefore will not fall within the exemption. "is means that the organiser remains liable for all his suppliers and their sta%. In X v. Kuoni the UK Supreme Court held an organiser liable for a rape committed by an in-house electrician of the hotel who had pretended to guide a traveller to the reception.65 "e argument that the electrician was not supposed to provide services to hotel guests was not accepted: the pretence of providing the service of accompanying a guest fell within the scope of the ‘holiday arrangements’ which the organiser had undertaken to provide. In contrast, Austrian and German law focus on whether the direct injuring party acted in ful!lment of contractual obligations or merely on the occasion of ful!lling a contract.66 According to the wording of Article 14 (3), the exemption only applies if the third party’s harmful conduct was “unforeseeable or unavoidable”. "e use of the word “or” suggests that “unforeseeable” and “unavoidable” are only alternative requirements and it is su$cient for the exemption to apply if the third party’s harmful conduct was either unforeseeable or unavoidable. "e same wording is used in other language versions of the Directive67 with the exemption of the German version saying „weder vorhersehbar noch vermeidbar“ (neither foreseeable nor avoidable) and thus suggesting cumulative requirements. "is divergence may become subject to a reference for preliminary ruling of the CJEU. 4) “Due to unavoidable and extraordinary circumstances” "e term “unavoidable and extraordinary circumstances” reminds on a similar phrase used in the Air Passenger Rights Regulation, speaking of ““extraordinary circumstances which could not have been avoided even if all reasonable measures 63 OGH 13.02.2018, 5 Ob 4/18a. 64 Article 5 (2) of Directive 90/314/EEC on package travel, package holidays and package tours. 65 X v Kuoni Travel Ltd [2021] UKSC 34. 66 Sec. 1313a of the Austrian Civil Code (ABGB); sec. 278 of the German Civil Code (BGB). 67 Portuguese „imprevisível ou inevitável“; French: „imprévisible ou inévitable“; Spanish: „imprevisible o inevitable“; Dutch: „niet kon worden voorzien of voorkomen“; … 356 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
had been taken”.68 Reg. (EC) No. 261/2004 doesn’t provide a de!nition of the term which therefore has become subject to extensive case law of the CJEU.69 In these judgements, the CJEU repeatedly emphasized that “extraordinary” and “unavoidable” are two separate and cumulative requirements. To release the air carrier from compensation, an event therefore has to be • beyond the actual control of the carrier; and • not inherent in the normal exercise of the activity of the air carrier concerned. In the CJEU’s extensive case law on ‘extraordinary circumstances’ in the context of air passenger rights, despite some inconsistencies, a tendency has emerged to regard events that have an external impact on #ight operations and are beyond the control of the air carrier as ‘extraordinary circumstances’. "e Directive, however, de!nes the term “unavoidable and extraordinary circumstances” as meaning “a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken“.70 "is de!nition doesn’t make the least reference to a requirement of the situation to be „extraordinary“ or „not inherent in the normal exercise of the activity of the organiser concerned”. From the wording of the de!nition, it therefore remains unclear whether such requirement has to be added or whether the concept of “unavoidable and extraordinary circumstances” under the Directive in this regard is distinct from the concept of “extraordinary circumstances” under the Air Passenger Rights Regulation.71 If the correct interpretation was that any situation covered by the wording of the de!nition in Article 3 (12) constituted “unavoidable and extraordinary circumstances”, the liability under the new Directive wouldn’t be much di%erent from the previous legal situation and remain close to a fault liability.72 68 Article 5 (3) of Regulation (EC) No 261/2004 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 #ights, and repealing Regulation (EEC) No 295/91. 69 See case C- C-549/07 - Wallentin-Herman v Alitalia; joint cases C-402/07 – Sturgeon v Condor and C-432/07 Böck ea v Air France; C-394/14 – Siewert v Condor; case C-315/15 – Pešková ea v Travel Service; joint cases C-195/17, C-197/17 – C-203/17, C-226/17, C-228/17, C-254/17, C-274/17, C-275/17, C-278/17 – C-286/17 and C-290/17 – C-292/17 –Krüsemann ea v TUIFly. 70 Article 3 (12). 71 For a comprehensive analysis of the issue see Wukoschitz, “Extraordinary” Legislative Shortcomings in the New PTD in Franceschelli/Morandi/Torres, "e New Package Travel Directive [2017]. 72 "is approach seems to be favoured by Grant/Mason/Bunce, Holiday Law6, 5-013 and 5-016. 357 ARTICLE 14 | MICHAEL WUKOSCHITZ
However, the CJEU has held that the concept of ‘unavoidable and extraordinary circumstances’ is akin to the concept of ‘force majeure’ in the sense of abnormal and unforeseeable circumstances beyond the control of the party claiming it, the consequences of which could not have been avoided despite the exercise of all due diligence. Despite the absence of any reference to force majeure in Directive 2015/2302, the concept of ‘unavoidable and extraordinary circumstances’ gives concrete expression to and constitutes an exhaustive implementation of the concept of ‘force majeure’ in the context of that directive.73 Furthermore, the CJEU has held that the terms ‘unavoidable and extraordinary’ referred to in Article 3(12) of Directive 2015/2302 relate only to situations which were unforeseeable.74 An organiser can therefore not refer to ‘unavoidable and extraordinary circumstances’ where the lack of confomity is due to measures by a public authority if those measures were adopted following a procedure which enabled the organiser concerned or any travel service providers, to be aware of them in good time before their implementation75 or where the organiser or the respective service providers contributed to the authority’s decision.76 IV. LIMITATION OF LIABILITY Article 14 (4) deals with the conditions under which the liability of the organiser is limited or can be limited. "e provision distinguishes between • limitation of liability according to international conventions binding the Union; • potential limitation of liability according to international conventions not binding the Union; and • the possibility of a contractual limitation of liability. 1) International conventions binding the Union If international conventions binding the Union provide for limited liability of a provider carrying out a travel service which is part of a package, the organiser can invoke the same limitations. "is includes in particular 73 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, margin 64. 74 CJEU judgment of 29 Feb. 2024 in case C-299/22 – Tez Tour, EU:C:2024:181, margin 74; judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, margin 65. 75 CJEU judgment of 23 Oct. 2025 in case C-469/24 – Tuleka, margin 73. 76 GCEU judgment of 21 Jan. 2026 in case T-134/25 – D, ECLI:EU:T:2026:35., margin 36. 358 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
• the Montreal Convention 1999 for the Uni!cation of Certain Rules for International Carriage by Air (MC); • the Athens Convention 2002 relating to the Carriage of Passengers and their Luggage by Sea (AC); and • the Uniform Rules concerning the Contract of International Carriage of Passengers by Rail (CIV), Appendix A to the Convention concerning International Carriage by Rail (COTIF). As far as carriage by air, by sea or by train is included in a package the liability of the organiser is limited in the same way as the liability of the organiser. As correctly pointed out by the Advocate General of the CJEU, 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.77 "e Montreal Convention which applies to international carriage by air78 or domestic carriage within the EU,79 covers liability of the air carrier for death or bodily injury of a passenger due to an accident on board or in the course of embarking or disembarking80 as well as liability for destruction or loss of or damage to baggage81 and delay of passengers or baggage.82 Where carriage by air is part of the contract concluded with the package organiser, the organiser is regarded the contracting carrier83 under the MC.84 Likewise, the Athens Convention, applicable to international carriage by sea85 or domestic carriage within the EU,86 covers liablilty for the loss su%ered as a result of the death of or personal injury to a passenger (with di%erent limitations and conditions applying whether or not the death or injury was caused by a shipping 77 Opinion of the Advocate General of 4 Sep. 2025 in case C-629/24 – Costa Crociere, ECLI:EU:C:2025:673, margin 47. 78 Article 1 MC. 79 Council Regulation (EC) No. 2027/97 of 9 October 1997 on air carrier liability in the event of accidents as amendend by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002, Article 1. 80 Article 17(1) MC. 81 Article 17(2) MC. 82 Article 19 MC. 83 Article 39 MC. 84 Reuschle, Montrealer Übereinkommen2, Art. 1 margin 9. 85 Article 2(1) AC. 86 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, Article 1(2). 359 ARTICLE 14 | MICHAEL WUKOSCHITZ
incident)87 and the loss su%ered as a result of the loss of or damage to cabin luggage88 or other luggage.89 As “carrier”, under the AC means a person by or on behalf of whom a contract of carriage has been concluded, whether the carriage is actually performed by that person or by a performing carrier90 the concept of carrier also covers a package organiser where carriage by sea is part of the contract concluded with that organiser, in partciular where an organiser o%ers cruise packages. "is, of course, raises the question of exclusivity as provided for in Article 29 of the Montreal Convention or Article 14 of the Athens Convention. "ere is no global consensus on how this exclusivity has to be interpreted. While some states tend to a rather restrictive view according to which there is either a claim under the respective convention or no claim at all,91 others only apply the exclusivity to claims which are in principle covered by the convention.92 It seems quite likely that national courts will seek clari!cation by a preliminary ruling of the CJEU in this regard. When judging the compatibility of the European Air Passenger Regulation with the Montreal Convention, the CJEU took the view that the compensation granted by the former in cases of cancellation or long delay fell outside the scope of Article 29 of the Montreal Convention.93 It therefore seems likely that the CJEU will rather follow the concept of a “weak exclusivity”. To date, national courts have predominantly ruled that the AC takes precedence over national implementations of the PTD. 94 In a pending case,95 however, the Advocate General96 suggests Article 2, Article 3(1) and the !rst paragraph of Article 7 of Reg (EC) No 392/2009, as well as Annex I thereto,97 to be interpreted as governing the liability of a maritime carrier operating a cruise with the characteristics of a package holiday only in so far as it concerns personal injuries sustained by a passenger as a result of the sea carriage. Conversely, 87 Article 3(1) and (2) AC. 88 Article 3(3) AC. 89 Article 3(4) AC. 90 Article 1(1)(a) AC. 91 “Strong exclusivity”; see for example U.K. Supreme Court, Stott v !omas Cook Tour Operators Limited [2014] UKSC 15; 92 „Weak exclusivity“; see for example OGH 17.12.2012, 10 Ob 47/12b. 93 CJEU 10.01.2006, C-344/04 IATA and ELFAA v Department for Transport and CJEU 19.11.2009, joint Cases C-402/07 Sturgeon v Condor and C-432/07 Böck ea v Air France. 94 See Norfolk v My Travel [2004] 1 Lloyd’s Rep. 106; HG Wien, judgment of 17 Feb 2022, 60 R 136/21m; Helsingin hovioikeus (Appelate Court Helsinki), judgment No. 1040 9191 of 12 Dec. 2025. 95 CJEU Case C-629/24 – Costa Crociere. 96 Opinion of Advocate General Norkus of 4 Sept. 2025 in Case C-629/24 – Costa Crociere. 97 "e Athens Convention. 360 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
personal injuries arising in the context of services typically included in a cruise package – such as accommodation and catering – should fall within the material scope of the PTD. "is approach, in my view, disregards the nature of the AC as an international convention that is binding on the EU and establishes uniform liability standards for all members of the convention.98 "e Uniform Rules concerning the Contract of International Carriage of Passengers by Rail (CIV) cover the loss or damage resulting from the death of, personal injuries to, or any other physical or mental harm to, a passenger, caused by an accident arising out of the operation of the railway and happening while the passenger is in, entering or alighting from railway vehicles whatever the railway infrastructure used,99 with a limit per passenger of 175,000 units of account,100 liability in case of cancellation, late running of trains or missed connections101 and liability in respect of hand luggage, animals, registered luggage and vehicles.102 2) International conventions not binding the Union With regard to international conventions not binding the Union, Article 14 (4) leaves it to the member states to implement a limitation of the liability of the organiser according to such conventions. In so far, Article 14 (3) constitutes one of the few exceptions from the principle of full harmonisation which governs the Directive.103 An example of such a convention is the Paris Convention on the Liability of Hotel-keepers concerning the Property of their Guests, signed in Paris in 1962 and rati!ed by twelve EU Member States104 and !ve non-EU countries.105 3) Contractual limitation of liability According to Article 14 (4), the package travel contract may limit compensation to be paid by the organiser. However, such limitation must not apply to personal injury or damage caused intentionally or with negligence. 98 See in more detail: Wukoschitz, Auf hoher See vor dem EuGH, RRa 2026, 2. 99 Article 26(1) CIV 100 Article 30/2) CIV. 101 Article 32 CIV. 102 Articles 33 to 47 CIV. 103 Article 4. 104 Belgium, Croatia, Cyprus, France, Germany, Ireland, Italy, Lithuania, Luxembourg, Malta, Poland and Slovenia. 105 Bosnia Herzegovina, Montenegro, North Macedonia, Serbia, UK. 361 ARTICLE 14 | MICHAEL WUKOSCHITZ
As “intention” and “negligence” are the two possible manifestations of fault the provision is another clear indication that fault is no fundamental requirement of liability any more: if there was no liability without fault it wouldn’t make sense to only allow for a contractual limitation of liability in cases when there is no fault. Or in other words: where liability doesn’t apply at all it cannot be subject to a contractual limitation. In addition, the limited liability must not amount to less than three times the total price of the package. Given these tough restrictions, it seems unlikely that a contractual limitation of liability could really have a noticeable impact on the traveller’s right to compensation. V. RELATION TO PASSENGER RIGHTS REGULATIONS Article 14 (5) provides that any right to compensation or price reduction under the Directive shall not a%ect the rights of travellers under the European Passenger Rights Regulations106 or under international conventions. Travellers therefore are free to choose whether to !le a claim under the Directive or under any of these regulations or conventions. However, to avoid overcompensation any compensation or price reduction granted under the Directive on the one hand and any compensation or price reduction granted under those Regulations and international conventions on the other hand shall be deducted from each other. "e Directive thereby clari!es that price reduction as well as compensation under the Directive can be settled against any compensation received under the Passenger Rights Regulations. "is is important as, for example, Article 12 of Reg. (EC) No. 216/2004 only provides that a compensation granted under this Regulation may be deducted from any further compensation the passenger is entitled to but doesn’t mention price reduction. Anyway, the German Supreme Court had already held that the “further compensation” a compensation under Reg. (EC) No. 216/2004 can be deducted from includes price reduction in package travel if same relates to a #ight disruption.107 In Austria, the Regional Court of Feldkirch con!rmed that a compesenation obtained from the air carrier under Reg. (EC) No. 261/24 is 106 Regulation (EC) No 261/2004, Regulation (EC) No 1371/2007, Regulation (EC) No 392/2009, Regulation (EU) No 1177/2010 and Regulation (EU) No 181/2011. 107 BGH 30.09.2004, X ZR 126/13. 362 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
to be credited in full against claims for price reductions and damages against the package organiser.108 Another important clari!cation is that the deduction can be made both ways. So far some German courts had been of the opinion that only the compensation granted under Reg. (EC) No. 216/2004 can be subject to deduction from a “further compensation” – but not vice versa.109 VI. LIMITATION PERIOD "e limitation period for !ling price reduction or compensation claims under Article 14 must not be less than two years. Keeping in mind the full harmonisation principle according to Article 4, no other restrictions shall apply. If member states have any such restrictions (for instance: in their consumer codes) these must not be maintained. "e Directive doesn’t say from which date the limitation period shall start. "e start of the limitation period therefore is subject to national law of the respective member state. VII. PTD REVISION "e current revision of the Directive does not include any changes to the liability provisions of Article 14. However, the planned changes to the de!nition of a ‘package’ will, of course, have an impact on the scope of application of these liability rules. VIII. IMPLEMENTATION OF ARTICLE 14 IN SELECTED MEMBER STATES Due to language barriers, the following explanations only throw a light of the implementation of Article 14 in some selected member states (in alphabetical order) but may still give an impression of di%erent approaches with regard to the implementation. 108 LG Feldkirch judgment of 12 Nov. 2024, 2 R 259/24i, Rra 2025, 105. 109 See Bollweg in Staudinger/Keiler, Fluggastrechte-Verordnung, Art 12 Rn 74, quoting respective case law. 363 ARTICLE 14 | MICHAEL WUKOSCHITZ
1) Austria In Austria, Article 14 has been implemented in sec. 12 of the new Package Travel Act.110 "e wording of the national provision more or less follows the wording of the Directive with some slight amendments due to the particular legal language in Austria. In para (2) the Austrian provision explicitly mentions loss of holiday enjoyment as to be covered by the compensation in case of severe negative impact of the lack of conformity. It further contains an amendment according to which a failure of the traveller to inform the organiser on any lack of conformity which he perceived during the performance of a travel service may be regarded as contributory negligence. In my opinion this amendment leads to confusion rather than it leads to clari!cation as it leaves doubts about the e%ect of such failure with regard to price reduction claims. Contrary to Article 14 (4), sec. 12 (4) provides that the compensation to be paid to the traveller must not be subject to any contractual limitation, whatsoever. "is discrepancy is based on the Austrian legislator’s assumption that any liability of the organiser under Austrian law would require fault and therefore there wouldn’t be any scope of application for a contractual limitation which only applies where damage is caused neither intentionally nor with negligence. Given the clear wording of Article 14, I feel, that this assumption cannot be upheld. Austria did not make use of the option of a limitation of the organiser’s liability according to international conventions which are not binding for the Union. 2) Germany Germany has implemented Article 14 in sec. 651m, sec. 651n and sec. 651p of its Civil Code.111 "e German legislator decided neither to follow the exact wording nor to follow the structure of the Directive. Sec. 651m, implementing Article 14 (1) deals with price reduction and in addition to the text of the Directive provides some principles on how the reduction shall be calculated, namely according to the relation of the value of the package a%ected by the lack of conformity to the value of a properly performed package. 110 Bundesgesetz über Pauschalreisen und verbundene Reiseleitungen (Pauschalreisegesetz – PRG), BGBl 2017/50. 111 Bürgerliches Gesetzbuch (BGB). 364 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE
Sec. 651n is implementing Article 14 (2) and (3) on compensation and the potential defences of the organiser. Like the Austrian Package Travel Act, sec. 651n (2) explicitly mentions loss of holiday enjoyment as to be covered by the compensation in case of severe negative impact of the lack of conformity. As regards the issue whether a lack of conformity attributable to a third party unconnected to the provision of the travel services has to be unforeseeable and unavoidable in order to release the organiser or only “unforeseeable or unavoidable”, the German legislator has decided to regard the German version of the Directive as an incorrect translation and therefore to adopt the wording of the other language versions. Article 14 (4) is implemented in sec. 651p of the German Civil Code. Like Austria, Germany did not make use of the option for a limitation of the organiser’s liability according to international conventions which are not binding for the Union. 3) Malta Malta has implemented the Directive in its Package Travel and Linked Travel Arrangements Regulations, 2018,112 Regulation 13 of which corresponds with Article 14 of the Directive. "e wording of the Regulation closely follows that of Article 14. Malta made use of the option to limit the organiser’s liability according to international conventions which are not binding for the Union but of which Malta is a party to. It also made use of the option to extend liability under the directive to retailers.113 "e related provision can be found in Regulation 12 (1). 4) Spain In Spanish law, the implementation of Article 14 can be found in Artículo 162 of the Consumer Protection Act.114 "e implementation follows the wording of the Directive. Like Malta, Spain made use of the option to extend liability under the directive to retailers but did not make use of the option of a limitation of the organiser’s liability according to international conventions which are not binding for the Union. 112 Law No. 94 of 2018, Malta Travel and Tourism Services Act, Cap. 409. 113 Article 13 (1). 114 Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias, aprobado por Real Decreto Legislativo 1/2007, de 16 de noviembre, modi!cado por Real Decreto-ley 23/2018, de 21 de diciembre, de transposición de directivas en materia de marcas, transporte ferroviario y viajes combinados y servicios de viaje vinculados. 365 ARTICLE 14 | MICHAEL WUKOSCHITZ
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