| Liability according to the EU Package Tours Directive and National Implementation – Recent Cases of the UK Court of Appeal and the German Bundesgerichtshof Paper to be presented at the 17th International Conference of IFTTA in Vienna, August 2005 by Klaus Tonner Professor for Private Law and European Law at the University of Rostock
Abstract Art. 5 of the EU Package Tours Directive provides for liability of the tour operator. Basically, it is a strict liability rule, but allows the tour operator to object that the improper performance or non performance is attributable to the consumer, to a third party not connected with the tour operator, or force majeure. In European law provisions of Directives are not applicable directly but need implementation legislation by the member states so that in a given case the law of the member state (which must be in conformity with the European Directive) has to be applied. It is the purpose of this paper to compare the relevant implementation legislation of Art. 5 of two member states, namely the United Kingdom and Germany. In the UK the relevant provision is reg. 15 of the Package Travel, Package Holiday and Package Tours Regulations, 1992, whereas in Germany it is a provision of the Civil Code, § 651 f Bürgerliches Gesetzbuch (BGB). Moreover, in both member states courts had to decide about these two provisions. We will discuss in this paper a decision of the UK Court of Appeal, the Hone case, and a decision of the German Bundesgerichtshof. In both cases we have to ask, whether the courts observe the duty to apply implementation legislation in conformity with the underlying Directive. The Hone case is not new for IFTTA members, as Marc McDonald presented a paper at the 15th conference in Monaco (a more developed version is published in Int TLJ 2003, 131 et seq. and 211 and seq.). The problem of this case whether it is in line with the Directive, if the consumer has to prove fault of the tour operator. The German case deals with compensation for ruined holiday to be paid by the tour operator additionally of compensation for material and non-material losses. This kind of compensation is required not by the clear wording of Art. 5 of the Directive, but by a recent decision of the European Court of Justice, the Leitner case. Both cases show that it is not easy for national courts to observe the rule to apply the law in conformity with Directives and that this is a source of regrettable incoherent application of the Package Tours Directive in the member states. | 
