X v Kuoni Travel Ltd.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:213
• Date: 18 March 2021
• Docket Number: C-578/19
• Celex Number: 62019CJ0578
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Third Chamber)

18 March 2021 ( *1 )

(Reference for a preliminary ruling – Directive 90/314/EEC – Article 5(2), third indent – Package travel, package holidays and package tours – Contract concerning package travel concluded between a travel organiser and a consumer – Liability of the travel organiser for the proper performance of obligations arising from the contract by other suppliers of services – Damage resulting from the acts of an employee of a supplier of services – Exemption from liability – Event that cannot be foreseen or forestalled by the travel organiser or the supplier of services – Concept of a ‘supplier of services’)

In Case C‑578/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the Supreme Court of the United Kingdom, made by decision of 24 July 2019, received at the Court on 30 July 2019, in the proceedings

X

v

Kuoni Travel Ltd,

intervener:

ABTA Ltd,

THE COURT (Third Chamber),

composed of A. Prechal (Rapporteur), President of the Chamber, N. Wahl, F. Biltgen, L.S. Rossi and J. Passer, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– X, by R. Weir QC and K. Deal QC, and by P. Banks, Solicitor,

– Kuoni Travel Ltd, by W. Audland QC, by N. Ross and A. Burin, Barristers, and by G. Tweddle, Solicitor,

– ABTA Ltd, by H. Stevens QC, by J. Hawkins, Barrister, and by T. Smith, Solicitor,

– the European Commission, by A. Lewis and C. Valero, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 10 November 2020,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of the third indent of Article 5(2) of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59).

2 The request has been made in proceedings between X, a consumer residing in the United Kingdom, and Kuoni Travel Ltd (‘Kuoni’), a travel organiser established in the United Kingdom, concerning the claim made by X for compensation for damage suffered as a result of the improper performance of the contract relating to package travel concluded between herself and Kuoni (‘the contract at issue’).

Legal context

EU law

3 Directive 90/314 states, in the first to third and the tenth recitals thereof: ‘Whereas one of the main objectives of the [European Union] is to complete the internal market, of which the tourist sector is an essential part; Whereas the national laws of Member States concerning package travel, package holidays and package tours … show many disparities and national practices in this field are markedly different, which gives rise to obstacles to the freedom to provide services in respect of packages and distortions of competition amongst operators established in different Member States; Whereas the establishment of common rules on packages will contribute to the elimination of these obstacles and thereby to the achievement of a common market in services, thus enabling operators established in one Member State to offer their services in other Member States and [EU] consumers to benefit from comparable conditions when buying a package in any Member State; … Whereas the consumer should have the benefit of the protection introduced by this Directive irrespective of whether he is a direct contracting party, a transferee or a member of a group on whose behalf another person has concluded a contract in respect of a package.’

4 Article 1 of Directive 90/314 provides: ‘The purpose of this directive is to approximate the laws, regulations and administrative provisions of the Member States relating to packages sold or offered for sale in the territory of the [European Union].’

5 Article 2 of that directive states: ‘For the purposes of this Directive: 1. “package” means the pre-arranged combination of not fewer than two of the following when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation: (a) transport; (b) accommodation; (c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package. The separate billing of various components of the same package shall not absolve the organiser or retailer from the obligations under this Directive; 2. “organiser” means the person who, other than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer; 3. “retailer” means the person who sells or offers for sale the package put together by the organiser; 4. “consumer” means the person who takes or agrees to take the package …, or any person on whose behalf the principal contractor agrees to purchase the package … or any person to whom the principal contractor or any of the other beneficiaries transfers the package … 5. “contract” means the agreement linking the consumer to the organiser and/or the retailer.’

6 The second subparagraph of Article 4(6) of Directive 90/314 provides: ‘In [the case where the consumer withdraws from the contract pursuant to paragraph 5, or if, for whatever cause, other than the fault of the consumer, the organiser cancels the package before the agreed date of departure], he shall be entitled, if appropriate, to be compensated by either the organiser or the retailer, whichever the relevant Member State’s law requires, for non-performance of the contract, except where: … (ii) cancellation, excluding overbooking, is for reasons of force majeure, i.e. unusual and unforeseeable circumstances beyond the control of the party by whom it is pleaded, the consequences of which could not have been avoided even if all due care had been exercised.’

7 Article 5(1) to (3) of that directive provides: ‘1. Member States shall take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services without prejudice to the right of the organiser and/or retailer to pursue those other suppliers of services. 2. With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organiser and/or retailer is/are liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to that of another supplier of services, because: – the failures which occur in the performance of the contract are attributable to the consumer, – such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable, – such failures are due to a case of force majeure such as that defined in Article 4(6), second subparagraph (ii), or to an event which the organiser and/or retailer or the supplier of services, even with all due care, could not foresee or forestall. … 3. Without prejudice to the fourth subparagraph of paragraph 2, there may be no exclusion by means of a contractual clause from the provisions of paragraphs 1 and 2. …’

United Kingdom law

The 1992 Regulations

8 The Package Travel, Package Holidays and Package Tours Regulations 1992 of 22 December 1992 (‘the 1992 Regulations’) transposed Directive 90/314 into United Kingdom law.

9 Regulation 15(1), (2) and (5) of the 1992 Regulations provides: ‘(1) The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services. (2) The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because - (a) the failures which occur in the performance of the contract are attributable to the consumer, (b) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or (c) such failures are due to – (i) unusual and unforeseeable circumstances beyond the control of the party by whom the exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised; or (ii) an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall. … (5) Without prejudice to paragraph (3) and paragraph (4) above, liability under paragraphs (1) and (2) above cannot be excluded by any contractual term.’

The 1982 Act

10 Pursuant to section 13 of the Supply of Goods and Services Act 1982 of 13...