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
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