• 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. The CJEU argued that, according to its usual meaning in everyday language, the phrase “supplier of services”, set out in Article 5 of Directive 90/314, referred to a natural or legal person who provided services for remuneration. An employee of a supplier of services could not himself or herself be classified as a supplier of services, within the meaning of Article 5 of Directive 90/314, in so far as he or she had not concluded any agreement with the package travel organiser for the purposes of providing services to the latter, but merely performed work on behalf of a supplier of services which had concluded such an agreement with that organiser, with the result that the employee’s actions, when performing that work, were, in most cases, intended to contribute to the performance of the obligations which fall to the supplier of services employing that employee. This, however, would not preclude such employee’s acts or omissions from being treated in the same way as those of the supplier of services employing him or her for the purpose of the application of the system of contractual liability established in Article 5 of the PTD 1990. The CJEU clarified that the liability of the organiser laid down in Article 5 relates solely to the obligations arising from the package travel contract, which the organiser has concluded with that consumer. In view of the objective pursued by the PTD 1990, which consisted, inter alia, in ensuring a high level of consumer protection, the obligations arising from a package travel contract, however, could not be interpreted restrictively and comprised all obligations associated with the provision of transport, accommodation and tourism services arising from the purpose of the package travel contract, irrespective of whether those obligations were to be performed by the organiser itself or by suppliers of services. The exemption from liability laid down in the third indent of Article 5(2) of the PTD 1990, which refers to situations in which the non-performance or improper performance of the contract is due to an event which the organiser or the supplier of services, even with all due care, could not foresee or forestall, had to be interpreted strictly. Since the acts or omissions of an employee of a supplier of services, in the performance of obligations arising from a package travel contract, resulting in the non-performance or improper performance of the organiser’s obligations vis-à-vis the consumer fell within the sphere of control of the respective supplier, such acts or omissions could not be regarded as events which cannot be foreseen or forestalled within the meaning of the third indent of Article 5(2) of the PTD 1990. The CJEU explicitly pointed out that the referring court started from the premise that X being accompanied to reception by a member of the hotel staff was a service falling within the scope of the holiday arrangements which KUONI contracted to provide under the contract at issue, and that the rape committed by N constituted improper performance of that contract. However, the CJEU did not question this premise and did not make any considerations of its own as to whether the accompaniment of a hotel guest by an electrician really was to be attributed to the contractual services on the basis of the package travel contract.
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