The purpose of this article is to provide information on some aspects of the possibility of seeking liability of the tour operator under current legislation. This liability should be distinguished from the right of passengers to seek compensation from the air carrier. The article gives a brief overview of the matter and should not be perceived as legal advice but is purely informative. Your personal case may have specific features not covered here.
Directive 2015/2302 of the EP provides guidelines for the settlement of relations related to package tours, specifically Art. 13 and Art. 14 concern the matter related to the responsibility of the tour operator and the rights of the traveller. The directive has been transposed into our national legislation (promulgated in No. 37 of the State Gazette of May 4, 2018) in the Tourism Act (“TA”).
The provisions of Art. 90 et seq. of TA describe the scenarios in which the tour operator is responsible for the non-performance of the tourist services included in the contract for tourist package. Pursuant to Art. 90, para. 1 of TA the tour operator is responsible for the performance of the tourist services included in the contract for tourist package, regardless of whether these services are performed by him or by other providers of tourist services.
The judicial practice, although scarce, accepts that the responsibility of the tour operator towards the consumer for the exact performance of the contractual obligations also covers these obligations, including passenger services, which are performed by other service providers and regardless of the existence of a contractual obligation between the tour operator and the relevant supplier of services. In the event of a discrepancy between what was agreed in the travel package contract and what was established during the performance of the tourist service, the traveller has the obligation to notify the tour operator without unreasonable delay. In this case, an obligation arises for the tour operator to remedy the discrepancy, except when this is impossible or associated with disproportionately high costs given the degree of discrepancy and the value of the tourist services concerned. If the tour operator does not remedy the discrepancy, the traveller is entitled to an appropriate reduction in price for the time during which there was a discrepancy of the services provided with the tour package contract, unless the tour operator proves that the lack of compliance is due to the traveller.
According to Art. 90, para. 10 of the TA, when the discrepancy between the agreed and actually provided services significantly impairs the performance of the contract and the tour operator does not remedy the discrepancy within a reasonable period determined by the traveller, the latter may terminate the contract for travel package without incurring termination costs and requested a price reduction and/or compensation for the pecuniary and non-pecuniary damages suffered.
Art. 90, para. 11 of the TA states the following: when it is not possible to offer other tourist services for continuation of the contract or when the traveller rejects the services offered by the tour operator, the traveller has the right to a price reduction and/or compensation for the damages suffered in accordance with Art. 91 of the TA, without terminating the contract for the tourist package. The traveller is entitled to an appropriate price reduction for the time during which there was non-compliance with the services provided under the contract for the travel package, unless the tour operator proves that the lack of compliance is due to the traveller’s actions.
Pursuant to Art. 91, paragraph 2 of the TA, the traveller has the right to receive compensation from the tour operator for all property and non-property damages suffered as a result of non-compliance with the travel package contract. Compensation shall be made without undue delay by the tour operator. Therefore, the claim against the tour operator would cover: a) a request for a price reduction; and b) compensation for the pecuniary (material) damages and c) compensation for all non-pecuniary damages suffered (negative emotions, stress, tension). When making a claim in court, claims are subject to verification and assessment by the specific court panel.
Important clarification regarding non-pecuniary damages: Non-pecuniary damages do not have a pre-determined value expression and their compensation is achieved through the determination of fair compensation by the Court on the basis of Art. 52 of the Obligations and Contract Act (i.e. by fairness – upon the discretion of the judge). The Supreme Court had the opportunity to point out that justice in the sense of the above provision is not an abstract concept but is related to an assessment of objectively existing specific circumstances (all damages claimed must be proven before the judge). Non-pecuniary damages are the consequence of damage to non-material goods. According to the provisions of the Tourism Act, in case of non-performance of the contract by the tour operator, there is a possibility of compensation for suffered non-pecuniary damages. The merits of such a claim made in court will be assessed by the court in accordance with the evidence collected in the case.
Pecuniary (material) damages are those damages that constitute direct and immediate losses (expenses) or lost benefits that the traveller has endured (and can be proven).
The right of claim against the tour operator does not exclude the right of claim against the air carrier. The right to compensation or a price reduction under the Directive does not affect the rights of travellers under Regulation (EC) No. 261/2004. Travelers have the right to make legal claims under this Directive and the TА and under the cited regulation.
It should be borne in mind that the compensation or price reduction granted under the Directive and the TА and the compensation granted under the said Regulation will be deductible from each other to avoid overcompensation.