C-364/96

1. The question submitted to this Court by packages sold or offered for sale in the terri­ the Bezirksgericht für Handelssachen (Dis­ tory of the Community'. Article 7 of the trict Commercial Court), Vienna, upon Directive, the interpretation of which is -which a preliminary ruling is sought in the sought in the present proceedings, provides: present proceedings, concerns the interpreta­ 'The organiser and/or retailer party to the tion of Article 7 of Council Directive contract shall provide sufficient evidence of 90/314/EEC of 13 June 1990 on package security for the refund of money paid over 1 travel, package holidays and package tours and for the repatriation of the consumer in (hereinafter 'the Directive'). the event of insolvency'. Article 8 goes on to provide that Member States may adopt or retain more stringent provisions in the field covered by the Directive to protect the con­ In particular, the national court seeks to sumer. determine whether the purchaser of a 'pack­ age' holiday — who has therefore paid the holiday organiser for the services relating to the stay at the holiday destination — is entitled, under Article 7 of the Directive, to the refund of hotel expenses which he has paid (a second time) directly to the hotelier where, because of the supervening insol­ 3. In Austria, the. Directive has essentially vency of the holiday organiser, the purchaser been implemented by Paragraph 31b et seq. of the holiday was compelled to make a sec­ of the Law on Consumer Protection. Article 7 of the Directive is implemented by a spe­ ond payment to the hotelier who would oth­ cial order of the Minister for Economic erwise have prevented him from leaving the 2 Affairs. Paragraph 3 of that order, which is hotel. the relevant provision in this case, provides that the travel organiser must, when entering into a contract of insurance with an insur­ ance company authorised to operate in Aus­ Legislation applicable and the facts tria, guarantee the holidaymaker (a) the refund of money paid over, in so far as the travel services have not been provided, whether wholly or in part, as a result of the 2. Article 1 of the Directive states that the organiser's insolvency and (b) the refund of purpose of the Directive is 'to approximate the costs of repatriation incurred as a result the laws, regulations and administrative pro­ of the organiser's insolvency. visions of the Member States relating to

The Verein für Konsumenteninformation (hereinafter 'the plaintiff'), the consumer association to which the Hofbauers applied in order to enforce their rights, then requested reimbursement of the hotel 6. The national court therefore asks the charges from Karthago's insurers, Österre­ Court whether hotel charges paid a second ichische Kreditversicherungs AG (hereinafter time by the purchaser of a package holiday 'the defendant'). The defendant refused to directly to the hotelier are included, in the grant any refund, whereupon the plaintiff event of the organiser's insolvency, within made application to the Bezirksgericht für the necessary costs of repatriation referred to Handelssachen. in Article 7 of the Directive. It should be emphasised that this question is strictly lim­ ited to the case where the holidaymaker is prevented from leaving the hotel if he docs not pay for his accommodation. The question referred for a preliminary rul­ ing

5. The national court, on the view that Para­ graph 3 of the Austrian order relating to It must also be made clear that since Article insurance is to be interpreted in conformity 7 provides that 'the refund of money paid with the Directive, has decided to refer the over and ... the repatriation of the consumer'

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OPINION OF MR TESAURO — CASE C-364/96

7. In this connection I would first mention that this Court has already had occasion to rule that 'the result prescribed by Article 7 of the Directive entails the grant to package travellers of rights guaranteeing the refund of money that they have paid over and their repatriation in the event of the organiser's insolvency'. 3 Secondly, the recitals to the 8. This is necessarily the premiss from which Directive repeatedly refer to the objective of 4 one must proceed in determining whether consumer protection, and finally, it seems the protection offered by the Directive also to me there can be little doubt that the pur­ includes the refund of hotel charges paid pose of Article 7 is precisely that of protect­ directly by the consumer to the hotelier for ing the financial interests of consumers the specific purpose of being able to leave his holiday destination, and, therefore, as a con­ dition for being able to return home. 3 — Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others [1996] ECR I-4845, para­ graph 42 (judgment was delivered on 8 October 1996). 4 See, in particular, the eighth to eleventh recitals in which it is 5 — Dillenkofer (cited at footnote 3) once again provides guid­ stated, inter alia, that `disparitics in the rules protecting con­ ance here in stating: 'The protection which Article 7 guaran­ sumers in different Member States are a disincentive to con­ sumers in one Member State from buying packages in tees to consumers could be impaired if they were made to another Member State' and that 'the consumer should have enforce credit vouchers against third parties who are not, in the benefit of the protection introduced by this Directive'. In any event, required to honour them and who are likewise addition, the last two recitals specifically deal with consumer themselves exposed to the risks consequent upon insolvency' protection in the event of the insolvency of the organizer. (paragraph 64).

When the problem is put in those terms, it provided by the hotelier would even consti­ seems to me that costs relating to the provi­ tute negligence on the consumer's part since sion of hotel services incurred by the con­ there was no obligation to make such pay­ sumer in a case such as this must undoubt­ ment and the consumer therefore has no edly be considered to be included within the avenue for recovering the money paid to the necessary costs of repatriation and, more hotelier other than bringing legal proceed­ generally, within the insurance cover ings in loco. required by the Directive. The protection which the Directive is designed to afford the consumer would indeed be impaired if the case where the consumer is compelled by the hotelier to pay for services which ought to have been paid for by the travel organiser and which have not been paid for precisely because of the organiser's supervening insol­ vency were held to fall outside the scope of 10. In this connection, I would observe first the Directive. of all that the concept of 'repatriation of the consumer' cannot be interpreted so narrowly that only transport costs are covered; it must also include, more generally, any expenses necessary for the repatriation of the con­ sumer, including, in the instant case, hotel costs, at least in so far as their payment is a condition for being able to leave the hotel and return home. Nor do I see that the cir­ cumstance that the holidaymaker has made a payment which he was not legally obliged to 9. In the course of these proceedings, it has make has any bearing on the issue, given the nevertheless been argued, in particular by the objectives of the Directive. In particular, I do defendant, that the expression 'repatriation not think that it can reasonably be argued of the consumer' appearing in Article 7 of that the purchaser of a package holiday who the Directive refers only to travel expenses pays for hotel accommodation when com­ necessary for repatriation and not to the pro­ pelled to do so by the hotelier can be vision of any other services. In any event, the deemed to have acted negligently in such a absence of any contractual relationship way as to forfeit the full and complete pro­ between the hotelier and the holidaymaker tection afforded him by the Directive. makes it quite clear that the holidaymaker cannot be required to pay accommodation expenses directly to the hotelier, even in the event of the insolvency of the organiser. It would follow that, if the holidaymaker does pay such expenses, no claim can be made under the insurance which, under the Direc­ tive, must only refund money paid over to the organiser — in so far, of course, as the Clearly, as the Court stated in Dillenkofer, consumer has not enjoyed the services paid 'neither the objective of the Directive nor its for — and any transportation costs (air, train specific provisions require the Member or ship and, possibly, taxi fares) necessary for States to adopt specific provisions in relation repatriation. Any payment for services to Article 7 to protect package travellers

In conclusion, I am of the view that money As to the first aspect of the argument, I paid by the purchaser of a package holiday would merely observe that the possibility, or directly to a hotelier in settlement of services rather the risk, of a propagation of situations provided by the hotelier must be considered as necessary repatriation expenses, at least where, as in the case before the referring 8 In the present case, the plaintiff maintains that physical vio­ court, the hotelier, in the absence of payment lence would have been used to prevent the Hofbauers from leaving the hotel. Given that this is a question of fact for the for the services in question, prevents the national court to determine I would say that the 'prevention' need not be characterised by physical violence and that hos- consumer from leaving the hotel because of tility of a lesser degree which nevertheless exerts an irresist­ the supervening insolvency of the travel ible pressure upon the holidaymaker at the relevant time, such as cancelling or sending away a taxi called to take him to the airport, or refusing to hand over his luggage, would be sufficient. In the instant case, suffice it to say once agam that the question put to this Court by the referring court is founded upon the assumption that, if he had not been paid, the hotelier would have prevented the unfortunate holiday- 6 — Judgment referred to at footnote 3, paragraph 71. makers from leaving the hotel by any means at all. 7 — Idem, paragraph 72.

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VEREIN FÜR KONSUMENTENINFORMATION v ÖSTERREICHISCHE KREDITVERSICHERUNGS

As to the second aspect of the argument, I would observe first that, since it is precisely hotel and transport services which are nor­ As has already been explained, 9the con­ mally included in a package holiday, it would sumer in the present case was clearly obliged be difficult to imagine how the costs of to pay the hotelier for services the provision insurance would increase if the insurer were of which should have been guaranteed by the required to refund hotel expenses incurred in travel organiser but which was not, precisely a case such as that now before this Court. because of the organiser's supervening insol­ For example, one could imagine that, in the vency. It follows that the consumer who has situation where the insolvency of the organ­ made such a payment is at least entitled to a iser is announced and known to the hotelier refund of money paid to the travel organiser even before the unfortunate holidaymakers for such services. However, no such refund arrive, they would not even be allowed to set has been made and there is no evidence in foot inside the hotel. It is undisputed and the file that it will be made. As became abun­ indisputable that in such a case the insurer dantly clear at the hearing, the argument put would be required to ensure both the repa­ forward by the French Government is based triation of the holidaymaker and the refund upon an abstract assumption which does not 1 of the money paid over. This proves, if hold good in the instant case. 0This is fur- indeed proof were necessary, that the refund of hotel expenses in the case under consider­ ation here does not entail any additional risk 9 — See paragraph 8 above. for the insurer, as indeed was confirmed at 10 — It seems hardly necessary to add here that, had the holiday- maker been provided with a refund of the money paid to the hearing by the defendant itself in answer the travel organiser in respect of the hotel accommodation, to a specific question on this point. the proceedings now before the referring court and this Court would not have been brought.

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