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
RkJQdWJsaXNoZXIy MTE4NzM5Nw==