A WICKED DEED’S CURSE the Supreme Court referred the following questions to the CJEU8: (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 Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours 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); 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 Council Directive 90/314/EEC 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? and asked the CJEU, for the purpose of the reference, to assume that guidance by a member of the hotel’s staff of Mrs X to the reception was a service within the “holiday arrangements” which Kuoni had contracted to provide and that the rape and assault constituted improper performance of the contract. 5) THE JUDGEMENT OF THE CJEU In accordance with the Opinion of the Advocate General9, the CJEU10 clarified that, in the event of non-performance or improper performance of those obligations, which is the result of the actions of an employee of a supplier of services performing that contract • that employee cannot be regarded as a supplier of services for the purposes of the application of that provision; but, nevertheless, • the organiser cannot be exempted from its liability arising from such non- -performance or improper performance, pursuant to the third indent of Article 5(2) of the PTD 1990. 8 X v Kuoni Travel Ltd [2019] UKSC 37. 9 Opinion of Advocate General Szpunar delivered on 10 November 2020 in Case C-578/19. 10 Judgement of 18 March 2012 in Case C-578/19 – X/Kuoni.
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