Will X v Kuoni change the organiser’s liability, Michael Wukoschitz

detriment of the creditor18. Applying these principles, the Austrian Supreme Court has, for example, rejected the liability of a restaurant operator for bodily harm caused to a drunken guest by a waiter who had followed the guest into the street to collect the bill and punched him in the face and kicked him in the knee19. Also under German law20, vicarious liability does not apply to culpable acts that have no relevant connection with the obligations that the third party has been engaged to fulfil. In German literature, for example, it was explicitly argued that a vicarious agent by committing rape completely detaches himself from the tasks that the debtor has assigned to him21. Even if the cited case law naturally does not take into account the characteristic purpose of a package tour contract emphasised by the Supreme Court, i.e. to provide the traveller with recreation and pleasure, it remains to be noted that an electrician is not usually commissioned to guide hotel guests through the facility on his own initiative. The liability of the organiser pursuant to Article 14 (3) of the PTD 2015 relates to damages resulting from “lack of conformity”, defined as “a failure to perform or improper performance of the travel services included in a package”22. Any damage which is unconnected to the provision of a travel service therefore is not covered by Article 14 (3). The CJEU's very general comments on the PTD's objective of ensuring a high level of consumer protection and the resulting requirement not to interpret the organiser's liability restrictively do not necessarily mean that every act or omission by an employee of a supplier would be attributable to the provision of a travel service. It was argued that consistent with the consumer-protection objectives, expansive appoach to the extended liability povisions was clearly warranted23. However, a general sense of justice that a rape victim should not go without compensation may have contributed to the UK Supreme Court’s broad interpretation, but does not in itself form a legal basis. Since the term "travel service" is to be interpreted autonomously under EU law, only the CJEU can give a generally binding interpretation of what is to be attributed to the provision of a travel service. It is therefore regrettable that the CJEU was not also referred to this question by the UK Supreme Court, but was given a premise in this regard. 8) Conclusions Although the case in the United Kingdom has now been decided on the merits, it is difficult to draw generally valid conclusions from it regarding the liability of the package organiser. On the one hand, this is due to the fact that the PTD 2015 has come into force in the meantime, which has also partially redefined the liability of the package organiser, but on the other hand, it is also due to the fact that the relevant question of which acts or omissions of an employee of a service supplier are to be regarded as part of the provision of travel services has not been submitted to the CJEU for a preliminary ruling. The courts of the EU member states can therefore still come to different conclusions, whereby the decisions of the British 18 Austrian Supreme Court (OGH), judgement of 26 April 2000, 3 Ob 296/98w. 19 Austrian Supreme Court (OGH), judgement of 29 November 2007, 1 Ob 127/07v. 20 Sec. 278 of the German Civil Code (BGB). 21 Weimar, 1982, p. 95. 22 Art. 3 (13) of the PTD 2015. 23 Chapman et al, 2022, p. 217.

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