7) Analysis In assessing whether the ECJ judgment in X v Kuoni will change the scope of the package tour operator's liability from an EU wide perspective, and not just from a national UK perspective, it is necessary to consider that the judgment relates to the PTD 1990, which has been replaced (with effect from 1 July 2018) by the new PTD 201513. In the PTD 2015 the exception of failures “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” which is to be distinguished from the force majeure exception14 has been dropped. This indicates that under the PTD 1990, the liability of the organiser has changed from fault-based liability with a reversed burden of proof to absolute liability with only an exhaustive list of exceptions comprising a lack of conformity attributable to the traveller, an unforeseeable or unavoidable lack of conformity attributable to a third party unconnected with the provision of the travel services included in the package travel contract and a lack of conformity due to unavoidable and extraordinary circumstances15. The issue of whether a criminal act of an employee of a supplier could, under any circumstances, be regarded as unforeseeable or unavoidable for the organiser and/or the respective supplier therefore has lost its relevance because such employee cannot be regarded as a “third party unconnected with the provision of the travel services”. Same applies to the issue of whether such employee himself is to be considered a “supplier of services”. As an interim result, it can therefore be stated that with regard to the questions submitted to the CJEU by the UK Supreme Court, it is not so much the CJEU's decision as the new PTD that has expanded the scope of liability of the package organiser. The more interesting issue therefore remains which actions or omissions of a supplier’s employee can be regarded as part of the provision of the services under the package travel contract. The Supreme Court of the United Kingdom took a very broad view in this respect, whereas the CJEU did not give any further consideration to this on the basis of the premise underlying the reference for a preliminary ruling. It cannot therefore be said, in my view, that the very general observations of the CJEU necessarily support the interpretation of the UK Supreme Court. Austrian civil law16 distinguishes in vicarious liability according to whether the vicarious agent in question (be it a supplier or an employee of a supplier) has acted in fulfilment of the debtor's contractual obligations - or merely on the occasion of these obligations. According to settled case law, the debtor is only liable for the tortious act of an agent if it falls within the area of responsibility which the debtor has appointed him to perform17. The debtor is therefore not liable for intentional tortious acts of the vicarious agent if he had only provided the vicarious agent with the actual opportunity to commit theft, fraud or bodily harm to the 13 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC. 14 Judgement of 18 March 2012 in Case C-578/19 – X/Kuoni, para 58. 15 Art. 14 (3) of the PTD 2015. 16 Sec. 1313a oft he Austrian Civil Code (ABGB). 17 RIS-Justiz RS0028626.
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