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
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