C-400/00

CLUB-TOUR

OPINION OF ADVOCATE GENERAL TIZZANO delivered on 17 January 2002 1

1. By order of 31 October 2000, received at I — Legal background the Court Registry on 3 November, the 8° Juízo Cível da Comarca do Porto (8th Civil District of the Oporto Local Court, Por- tugal), pursuant to Article 234 EC, referred two questions to the Court for a prelimi- nary ruling concerning the interpretation of Directive 90/314/EEC, 2in connection with A — Directive 90/314/EEC a case brought by a travel agency against a customer who refused to pay the agency for the service provided due to the serious discomfort suffered during the course of a 2. The purpose of the directive is to holiday at a hotel complex. The national approximate the laws, regulations and court seeks to ascertain whether the con- administrative provisions of the Member cept of a 'package' holiday, which defines States relating to packages sold or offered the scope of the directive, also includes for sale in the territory of the Community 'customised' packages, that is packages (Article 1). organised at the request and on the initi- ative of the consumer or a strictly defined group of consumers in accordance with their specific wishes.

3. Article 2 of the directive provides that:

'For the purposes of this Directive:

1 — Original language: Italian. 2 — Council Directive 90/314/EEC of 13 June 1990 on package (1) "package" means the pre-arranged travel, package holidays and package tours (OJ 1990 L158, p. 59, hereinafter the directive'). combination of not fewer than two of

(2) "organiser" means the person who, 2. When a brochure is made available to other than occasionally, organises the consumer, it shall indicate in a legible, packages and sells or offers them for comprehensible and accurate manner both sale, whether directly or through a the price and adequate information con- retailer; cerning:

(3) "retailer" means the person who sells (a) the destination and the means, char- or offers for sale the package put acteristics and categories of transport together by the organiser; used;

I - 4054

CLUB-TOUR

(b) the type of accommodation, its The particulars contained in the brochure location, category or degree of comfort are binding on the organiser or retailer, and its main features, its approval and unless: tourist classification under the rules of the host Member State concerned;

— changes in such particulars have been clearly communicated to the consumer (c) the meal plan; before conclusion of the contract, in which case the brochure shall expressly state so,

(iv) information on the optional (i) the times and places of inter- conclusion of an insurance mediate stops and transport policy to cover the cost of connections as well as details cancellation by the consumer of the place to be occupied by or the cost of assistance, the traveller, e.g. cabin or including repatriation, in the berth on ship, sleeper compart- event of accident or illness. ment on train;

2. Member States shall ensure that in relation to the contract the following (ii) the name, address and tele- principles apply: phone number of the orga- niser's and/or retailer's local representative or, failing that, of local agencies on whose assistance a consumer in dif- ficulty could call. (a) depending on the particular package, the contract shall contain at least the elements listed in the Annex;

Where no such representatives or agencies exist, the consumer (b) all the terms of the contract are set out must in any case be provided in writing or such other form as is with an emergency telephone comprehensible and accessible to the number or any other infor- consumer and must be communicated mation that will enable him to him before the conclusion of the to contract the organiser contract; the consumer is given a copy and/or the retailer; of these terms;

I - 4056

CLUB-TOUR

(c) the provision under (b) shall not pre- or disembarkation fees at ports clude the belated conclusion of last- and airports, minute reservations or contracts.

OPINION OF MR TIZZANO — CASE C-400/00

governs the access to and the operation of Gregolimano. It was therefore Club Med the activities of travel agencies. 3Article 17 which made the necessary reservations at of that decree law includes in the concept of the hotel complex in Gregolimano (accom- tourist travel not only 'packages', as modation, meals and transfers) and pre- defined in Article 2(1) of the directive (see pared the programme, publicised it and set Article 17(2) of the Decree Law), but also the inclusive price. 'customised' holidays, that is 'prepared at the request of the client to meet the needs stated by him' (Article 17(3)). 4

I - 4058

CLUB-TOUR

'pre-arranged combination' within the I I I— Legal analysis meaning of Article 2(1) of the directive.

12. Given that, as shown in its preamble, A — First question the intention of the directive is to protect the consumer of tourism services by making the operators and travel agents responsible for losses due to improper performance of the contractual obligations, and on the 13. In the first question, the national court assumption that the national law must be asks, essentially, whether the concept of interpreted and applied in accordance with 'package' in Article 2(1) of the directive the directive, the 8th Civil District of the also includes 'customised' package holi- Oporto Local Court referred the following days, that is to say, tourism services which questions to the Court for a preliminary are organised at the request and on the ruling: initiative of the consumer or a strictly defined group of consumers in accordance with their wishes and therefore not fixed in advance unilaterally by the travel agencies.

'(1) Does a package organised by the agency, at the request and on the initiative of the consumer or a strictly defined group of consumers in accord- ance with their wishes, including trans- 14. First of all, I must point out that all the port and accommodation through a parties which presented observations in tourism undertaking, at an inclusive these proceedings, namely the Portuguese, price, for a period of more than 24 Austrian, Belgian, Spanish and French hours or including overnight accom- Governments, and also the Commission, modation, fall within the scope of the were in agreement that a positive answer concept of "package travel" as defined should be given to the question at issue, on in Article 2(1)? the basis of arguments which I shall now set out and with which I am fully in agreement.

the concept of a 'package', a concept from sumer corresponds to only one of the which nothing suggests that 'customised' components of the service does not pre- holidays are excluded, or that they should clude the application of the directive. Not be treated differently as compared with the only that, but the Court went on to say that general rules. Under Article 2(1) of the 'there is no basis in the text of the directive directive, for a service to be described as a for limiting its scope to packages offered to 'package', it is sufficient, firstly, that the a potentially unlimited number of con- combination of tourist services sold by a sumers and that it would be contrary to travel agency at an inclusive price includes the purpose of the directive to do so. In two of three components which, under that order for the directive to apply, it is provision, are the main features of those sufficient if the package is sold or offered services (that is, transport, accommodation for sale within the territory of the Com- and other tourist services not ancillary to munity at an inclusive price and includes at transport or accommodation and account- least two of the components mentioned in ing for a significant proportion of the Article 2(1) of the directive' (paragraph package), and secondly, that the service 31). exceeds 24 hours or includes an overnight stay. On the other hand, the directive does not require the service to be the result of a proposal by the agency to the customer, or that it should correspond to a rigid plan, except for the aspects indicated; any changes to that plan made at the request of the individual consumer do not therefore appear in themselves capable of changing those characteristics which define the con- cept at issue. 17. As various Governments have empha- sised, the judgment in AFS 6 is to the same effect, a case in which the Court gave a ruling with reference to a service for which the applicability of Article 2(1) of the directive had been called in doubt, as the stay was of long duration and provided free of charge (it was travel as part of a student exchange programme). On that occasion, 16. In confirmation of the above, various after pointing out again that the concept of Governments and the Commission rightly the 'package' does not require all the recalled that in its judgment in Rechberger 5 components stated in Article 2(1) of the the Court confirmed that 'according to directive to be present, the Court stated Article 2(1) of the directive, all that is firstly that the fact that the service was needed to constitute a package is the pre- provided for consideration 'does not con- arranged combination of at least two of the stitute an essential element' of that concept three components mentioned in that para- (paragraph 26) and secondly, that while graph, when sold or offered for sale at an 'the accommodation included in package inclusive price' (paragraph 29), so that the travel (is) normally of relatively short fact that the payment due from the con-

duration', that duration 'cannot be age and offers it by means of brochures or regarded as a defining element', as the other forms of advertising, to the public directive, which applies to 'any travel generally', thus clearly meaning that the exceeding 24 hours', '[does not provide 'package' corresponded to pre-arranged for] any maximum duration' (paragraph models, described and advertised in bro- 27). chures. However, in the final text, as a result of concerns expressed by the Euro- pean Parliament and the Economic and Social Committee, which considered that definition to be too restrictive of the scope of the directive, the provision defines the 'organiser' as 'the person who, other than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer.' 9 18. In support of that interpretation, some Governments and the Commission also mentioned the preparatory work for the directive and the amendments which were made during the course of that work to Article 2(1), specifically to broaden the concept of 'package' service or travel at an inclusive price as compared with the original proposal by the Commission of 23 March 1988. 7While in the original proposal the concept of 'package' included only 'the pre-arranged combination of not less than two of the following when organised at a global price' now, as we have seen, 'package' means 'the pre-ar- 19. In a 1999 report on the implementation ranged combination of not fewer than two of the directive, 10 which is also mentioned of the following when sold or offered for by the parties several times, the Commis- sale at an inclusive price.' 8This essentially sion had emphasised, among other things, confirms that the Community legislature the changes made to the directive during intentionally chose to move from the con- the preparatory work, deducing that even cept of a service designed and offered for though the text of Article 2(1) of the sale without any intervention from the directive is not explicit in that sense, it consumer to a concept which does not would be difficult to argue that the provi- allow the exclusion of a 'customised' sion does not also include 'customised' service, that is 'sold' in accordance with packages, given that the requirements to the particular needs of a given consumer. protect the consumer are the same for But that is not all. Again, in the original 'customised' holidays and holidays pre- proposal by the Commission, 'organiser' pared in advance by the organiser. was defined as 'the person who, in the course of his business, organises the pack- 9 — Article 2(2) of the directive (my italics). 10 — Report on the implementation of Directive 90/314/EEC on package travel and holiday tours in the domestic legis- 7 — COM(88) 41 final (OJ 1988 C 96, p. 5). lation of EC Member States [SEC(1999) 1800 final; see 8 — My italics. section 1.2. 1].

20. The Commission also noted, however, that, even though the text of the provision that a systematic reading of the directive and the preparatory work were still to leave bears out that point. Pursuant to some doubt, that doubt is finally dispelled Article 4(2) (a) 'depending on the particular if it is borne in mind that the interpretation package, the contract shall contain at least of the directive in question must be inspired the elements listed in the Annex' to the by a criterion which is not restrictive in any directive. In (j) of the Annex it is stated that way, in order to ensure that the consumer amongst the 'elements to be included in the has the broadest protection possible. The contract if relevant to the particular pack- judgments of the Court in the cases already age' are the 'special requirements which the mentioned, AFS and Rechberger, are, I consumer has communicated to the orga- believe, clearly orientated to that view, niser or retailer when making the booking, but I should point out that I too have and which both have accepted.'^ This espoused it recently in my Opinion in the means that, before the contract is entered Leitner case, 12 linking that criterion of into, the consumer can inform the travel interpretation not only to the systematic agency or organiser of special wishes or analysis of the text and the aims of the specific requirements and that, for that directive, but also to the fact that it was reason, he is not obliged to accept only the adopted pursuant to Article 100a (now, 'pre-arranged combination' proposed by after amendment, Article 95 EC), the third them. The Austrian Government also paragraph of which requires that harmon- added that there are already many orga- isation measures on consumer protection nisers who offer modules of tourism ser- be based on a high level of protection.13 An vices which can be combined depending on interpretation of Article 2(1) of the direc- the requirements of the customers, just as tive which goes against the line suggested there are 'packages' organised in advance here would mean a reduction of consumer which can be changed again on the basis of protection for the whole spectrum of 'cus- the specific needs of a particular customer tomised' travel. at the time of booking.

26. The French Government and the Com- mission also noted that in the 1999 report, referred to above, the Commission had suggested the removal of the term 'pre- arranged', which was thought to be 24. Talcing into account the solution sug- ambiguous and a source of uncertainty. If gested for the first question, that is, that the we consider, as I do, that the directive also concept of the 'package' includes 'custom- includes 'customised' holidays, that is those ised' travel, all the parties agree that the whose details can be finalised close to or on question should receive a positive response, the occasion of the contract being entered with the exclusion, stated by the Spanish into, that term does indeed appear to be Government, of services which are agreed superfluous. at the place of the service or tourist destination.

25. It seems to me that the observations of the parties can be espoused on this point 27. In conclusion, I hold the view that a too. Given that amongst the tourism ser- positive answer should also be given to the vices included in the scope of the directive second question.

I - 4063

OPINION OF MR TIZZANO — CASE C-400/00

IV — Conclusion

28. For the reasons set out above, I therefore propose that the Court declare that: