| Prof. dr hab. Mirosław Nesterowicz Nicolaus Copernicus University Toruń, Poland Travel Law in Poland
Polish travel law is fully adapted to the standards of the European Union and international Conventions. The most important regulations are the following: 1) Tourist Services Act of 29 August 1997 (Law Journal 2001 No 55, item 578), which implements Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. 2) Act of 13 July 2000 (Law Journal No 74, item 855), which implements Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis. 3) Act of 24 July 1998 (Law Journal No117, item 758), which amends art. 846 to 852 of the Civil Code (1964) concerning liability of hotel keepers, which implements the Convention of the European Council of 17 December 1962 on the Liability of Hotel-Keepers concerning the Property of their Guests. 4) Conventions concerning air passenger carriage (Warsaw 1929), maritime carriage (Athens 1974), rail carriage (Bern 1980). In internal transport, the Air Carriage Act (2002) and the Maritime Code (2001) are fully adjusted to the conventions. 5) The Road Transport Act (2001) and the INTERBUS Treaty (2000). The implementation of the Package Tours Directive into Polish law is of the greatest importance. Before 1997, there had been no legal regulation in Poland which would refer to the establishment and operation of travel agencies. Any person who registered with the local authorities could open a travel agency. Thus, there occurred abuses to the detriment of customers. Until 2004 the law required a licence necessary to run a travel agency as a tour operator, which was issued by the regional governor (wojewoda). The applicant had to: - prove that he has appropriate education and practice in the field of tourism; - prove that he has no criminal record; - produce a bank or insurance guarantee or an insurance contract to protect his customers against insolvency. In 2004 – to ensure greater freedom of economic activity – the licence was replaced by a registration procedure. All the other conditions that had to be fulfilled in order to run a travel agency remained unchanged The regional governor is authorized to control the tourist business conducted by the entrepreneur. In case of a violation of the requirements of the law, the regional governor may issue a decision prohibiting the exercise of tourist business for a period of 3 years. The regulation does not infringe upon the principles of freedom of trade, as everyone who fulfils the conditions required shall be granted registration. A travel agency must ensure reliability, solvency and the conduct of business at an appropriate level. The freedom of trade must have certain limitations: it must be balanced with consumer protection. Numerous provisions of the law implementing Directive 90/314/EEC deal with consumer protection (art. 11-19). The Civil Law Commission developed a draft of a travel contract as a new innominate contract of the Civil Code. The bill has not yet been passed. The travel contract shall be treated as a mixed contract whose elements are deducted from various types of contract of the Code and which has its own features to which the provisions of the Tourist Services Act and appropriate provisions of the Civil Code are applied (the judgement of the Supreme Court of 25 February 1986, III CZP 2/86, OSPiKA 6/1986, item 113). The travel agent (tour operator) has pre-contractual obligations towards the customer, which consist in granting thereto all information concerning the travel. The law defines in detail the information that must be included in the contract (the date of travel, its programme, means of transport, hotel, price, term of payment, tourist insurance, fulfilment or failure to fulfil the contract, termination of contract, complaint proceedings etc.). Similar to the Package Tours Directive, the liability of the travel agent is based on strict liability; it is independent of his fault or the fault of his contractors. The travel agent is not liable only if he proves that failure to fulfil or improper fulfilment of the contract is caused exclusively by: 1) an act or an omission of the customer; 2) acts or omissions of third parties who/which did not participate in the provision of services defined in the contract, if these acts or omissions could be neither foreseen nor avoided, or 2) force majeure. The most controversial issue of the travel agent’s liability for third parties (subcontractors – other travel agents, carriers, hotels, restaurant owners) has been settled in Polish law for a long time. The travel agent is strictly liable pursuant to art. 474 of the Civil Code, which stipulates that the debtor is liable for the acts or omissions of persons whom he uses to perform his obligation, as well as for the acts or omissions of any person to whom he entrusts the performance of his obligation in the same way as for his own acts or omissions. The principle of contractual liability for third parties was emphasized by the Supreme Court in its judgement of 28 March 1968 (I CR 64/68, PUG 4/1969). In the judgement the Court claimed that: “The travel agent is liable not only for the failure to organize medical care for the participants in a foreign package tour, but also for the acts or omissions of a foreign health care organization with which he had contracted for the fulfilment of obligations in this area”. Although the case concerns only a single issue mentioned in the judgement, the same must be true for other contractors of a travel agent that provide services to travellers. In the 25 February 1986 judgement (III CZP 2/86, OSPiKA 6/1986, item 113) the Supreme Court, based on art. 474 of the Civil Code, claimed that: “The travel agent is liable for the acts or omissions of foreign third parties with which he had contracted to fulfil his obligations to provide food to travellers in a foreign package tour even if he had no possibility to control or supervise these persons”. In the case in question the travellers suffered from serious food poisoning in a “Balkantourist’ restaurant. In its judgement of 13 January 1989 (III CZP 112/88, Pi 29/1989) the Supreme Court adjudicated the following: “The travel agent is liable for the acts or omissions of foreign third parties with which he had contracted to fulfil his obligations concerning hotel services provided to the participants in a foreign package tour based on the provisions of the Civil Code on the liability of hotel keepers and similar institutions (art. 846-852 of the Civil Code)”. In turn, in a case in which the participants in a sea voyage of the Stefan Batory transatlantic liner managed in November 1986 by Sportstourist were not allowed to disembark in Dakar because they did not have Senegalese visas, the Supreme Court in its judgement of 23 March 1990 (ICR 47/900) claimed that it occurred because the tour operator did not act carefully. He could not rely on the information provided by the sea carrier – Gdynia Polskie Linie Oceaniczne – that Senegalese visas were not required as, using for the purpose of obtaining this information a third party, he remained pursuant to art. 474 of the Civil Code liable as for an own wrong information. The liability of a tour operator foreseen in the law cannot be excluded or limited by contract (unless this is provided by an international convention) even if foreign law has been chosen. Since a long time, Polish jurisdiction has declared void clauses which exclude liability (for subcontractors, for personal injuries and damage to tourists’ luggage, for improper performance of the programme or for negligence), and which are stipulated by tour operators in the general terms and conditions for foreign package tours. As the package travel contract is a contract of adhesion, the tour operator determines the content of the contract and the customer has only the right to decide whether to adhere. The Tourist Services Act allows the travel operator to limit his liability towards the customer to double the price of the tour, but not with regard to personal injuries. Polish courts used to dismiss compensation for loss of enjoyment of holidays as they were of the opinion that there was no legal basis for it within the contractual liability provisions. Currently, after the judgement of the European Court of Justice of 12 March 2002 in the Leitner Case (C-168/00) the jurisdiction has been changing its opinion. The problems that appear in practice are that travel agencies often introduce unfair contract terms to contracts with clients. For instance, they exclude their liability for subcontractors (for the lack of hot water, central heating or air condition in a hotel, for loss or damage to luggage, for damage in transport), introduce too high deductions if the client cancels the trip or, which is a big problem, no-liability clauses in case of last minute trips (in return for a low price). Such clauses, unfavourable to clients and violating the law, are recognized as unfair contract terms by Urząd Ochrony Konkurencji i Konsumentów (Office for the Protection of Competition and Consumers – UOKiK). For instance, in 2003 UOKiK controlled standard form contracts of 229 major travel agencies and forbade the use of some contract terms. If a travel agency does not comply with UOKiK’s decision, UOKiK will bring proceedings in the Anti–Monopoly court in Warsaw (Court for the Protection of Competition and Consumers). This is the so-called “abstract” control. Apart from that Polish courts recognise unfair contract terms as void in cases brought before them against travel agencies by their clients. This is the so-called “in concreto”control. It is, however, obvious, that in comparison to the legal status from before the 1997 Act the situation has improved greatly. In the last few years there have been around 10 bankruptcy cases of travel agencies who failed to pay hotel keepers abroad or air carriers, which resulted in the fact that clients could not get hotel rooms or were unable to return to Poland. In these cases the regional governors made payments from insurance or bank guarantees.
Prof. dr hab. Mirosław Nesterowicz Nicolaus Copernicus University Toruń, Poland Travel Law in Poland
Polish travel law is fully adapted to the standards of the European Union and international Conventions. The most important regulations are the following: 1) Tourist Services Act of 29 August 1997 (Law Journal 2001 No 55, item 578), which implements Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. 2) Act of 13 July 2000 (Law Journal No 74, item 855), which implements Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis. 3) Act of 24 July 1998 (Law Journal No117, item 758), which amends art. 846 to 852 of the Civil Code (1964) concerning liability of hotel keepers, which implements the Convention of the European Council of 17 December 1962 on the Liability of Hotel-Keepers concerning the Property of their Guests. 4) Conventions concerning air passenger carriage (Warsaw 1929), maritime carriage (Athens 1974), rail carriage (Bern 1980). In internal transport, the Air Carriage Act (2002) and the Maritime Code (2001) are fully adjusted to the conventions. 5) The Road Transport Act (2001) and the INTERBUS Treaty (2000). The implementation of the Package Tours Directive into Polish law is of the greatest importance. Before 1997, there had been no legal regulation in Poland which would refer to the establishment and operation of travel agencies. Any person who registered with the local authorities could open a travel agency. Thus, there occurred abuses to the detriment of customers. Until 2004 the law required a licence necessary to run a travel agency as a tour operator, which was issued by the regional governor (wojewoda). The applicant had to: - prove that he has appropriate education and practice in the field of tourism; - prove that he has no criminal record; - produce a bank or insurance guarantee or an insurance contract to protect his customers against insolvency. In 2004 – to ensure greater freedom of economic activity – the licence was replaced by a registration procedure. All the other conditions that had to be fulfilled in order to run a travel agency remained unchanged The regional governor is authorized to control the tourist business conducted by the entrepreneur. In case of a violation of the requirements of the law, the regional governor may issue a decision prohibiting the exercise of tourist business for a period of 3 years. The regulation does not infringe upon the principles of freedom of trade, as everyone who fulfils the conditions required shall be granted registration. A travel agency must ensure reliability, solvency and the conduct of business at an appropriate level. The freedom of trade must have certain limitations: it must be balanced with consumer protection. Numerous provisions of the law implementing Directive 90/314/EEC deal with consumer protection (art. 11-19). The Civil Law Commission developed a draft of a travel contract as a new innominate contract of the Civil Code. The bill has not yet been passed. The travel contract shall be treated as a mixed contract whose elements are deducted from various types of contract of the Code and which has its own features to which the provisions of the Tourist Services Act and appropriate provisions of the Civil Code are applied (the judgement of the Supreme Court of 25 February 1986, III CZP 2/86, OSPiKA 6/1986, item 113). The travel agent (tour operator) has pre-contractual obligations towards the customer, which consist in granting thereto all information concerning the travel. The law defines in detail the information that must be included in the contract (the date of travel, its programme, means of transport, hotel, price, term of payment, tourist insurance, fulfilment or failure to fulfil the contract, termination of contract, complaint proceedings etc.). Similar to the Package Tours Directive, the liability of the travel agent is based on strict liability; it is independent of his fault or the fault of his contractors. The travel agent is not liable only if he proves that failure to fulfil or improper fulfilment of the contract is caused exclusively by: 1) an act or an omission of the customer; 2) acts or omissions of third parties who/which did not participate in the provision of services defined in the contract, if these acts or omissions could be neither foreseen nor avoided, or 2) force majeure. The most controversial issue of the travel agent’s liability for third parties (subcontractors – other travel agents, carriers, hotels, restaurant owners) has been settled in Polish law for a long time. The travel agent is strictly liable pursuant to art. 474 of the Civil Code, which stipulates that the debtor is liable for the acts or omissions of persons whom he uses to perform his obligation, as well as for the acts or omissions of any person to whom he entrusts the performance of his obligation in the same way as for his own acts or omissions. The principle of contractual liability for third parties was emphasized by the Supreme Court in its judgement of 28 March 1968 (I CR 64/68, PUG 4/1969). In the judgement the Court claimed that: “The travel agent is liable not only for the failure to organize medical care for the participants in a foreign package tour, but also for the acts or omissions of a foreign health care organization with which he had contracted for the fulfilment of obligations in this area”. Although the case concerns only a single issue mentioned in the judgement, the same must be true for other contractors of a travel agent that provide services to travellers. In the 25 February 1986 judgement (III CZP 2/86, OSPiKA 6/1986, item 113) the Supreme Court, based on art. 474 of the Civil Code, claimed that: “The travel agent is liable for the acts or omissions of foreign third parties with which he had contracted to fulfil his obligations to provide food to travellers in a foreign package tour even if he had no possibility to control or supervise these persons”. In the case in question the travellers suffered from serious food poisoning in a “Balkantourist’ restaurant. In its judgement of 13 January 1989 (III CZP 112/88, Pi 29/1989) the Supreme Court adjudicated the following: “The travel agent is liable for the acts or omissions of foreign third parties with which he had contracted to fulfil his obligations concerning hotel services provided to the participants in a foreign package tour based on the provisions of the Civil Code on the liability of hotel keepers and similar institutions (art. 846-852 of the Civil Code)”. In turn, in a case in which the participants in a sea voyage of the Stefan Batory transatlantic liner managed in November 1986 by Sportstourist were not allowed to disembark in Dakar because they did not have Senegalese visas, the Supreme Court in its judgement of 23 March 1990 (ICR 47/900) claimed that it occurred because the tour operator did not act carefully. He could not rely on the information provided by the sea carrier – Gdynia Polskie Linie Oceaniczne – that Senegalese visas were not required as, using for the purpose of obtaining this information a third party, he remained pursuant to art. 474 of the Civil Code liable as for an own wrong information. The liability of a tour operator foreseen in the law cannot be excluded or limited by contract (unless this is provided by an international convention) even if foreign law has been chosen. Since a long time, Polish jurisdiction has declared void clauses which exclude liability (for subcontractors, for personal injuries and damage to tourists’ luggage, for improper performance of the programme or for negligence), and which are stipulated by tour operators in the general terms and conditions for foreign package tours. As the package travel contract is a contract of adhesion, the tour operator determines the content of the contract and the customer has only the right to decide whether to adhere. The Tourist Services Act allows the travel operator to limit his liability towards the customer to double the price of the tour, but not with regard to personal injuries. Polish courts used to dismiss compensation for loss of enjoyment of holidays as they were of the opinion that there was no legal basis for it within the contractual liability provisions. Currently, after the judgement of the European Court of Justice of 12 March 2002 in the Leitner Case (C-168/00) the jurisdiction has been changing its opinion. The problems that appear in practice are that travel agencies often introduce unfair contract terms to contracts with clients. For instance, they exclude their liability for subcontractors (for the lack of hot water, central heating or air condition in a hotel, for loss or damage to luggage, for damage in transport), introduce too high deductions if the client cancels the trip or, which is a big problem, no-liability clauses in case of last minute trips (in return for a low price). Such clauses, unfavourable to clients and violating the law, are recognized as unfair contract terms by Urząd Ochrony Konkurencji i Konsumentów (Office for the Protection of Competition and Consumers – UOKiK). For instance, in 2003 UOKiK controlled standard form contracts of 229 major travel agencies and forbade the use of some contract terms. If a travel agency does not comply with UOKiK’s decision, UOKiK will bring proceedings in the Anti–Monopoly court in Warsaw (Court for the Protection of Competition and Consumers). This is the so-called “abstract” control. Apart from that Polish courts recognise unfair contract terms as void in cases brought before them against travel agencies by their clients. This is the so-called “in concreto”control. It is, however, obvious, that in comparison to the legal status from before the 1997 Act the situation has improved greatly. In the last few years there have been around 10 bankruptcy cases of travel agencies who failed to pay hotel keepers abroad or air carriers, which resulted in the fact that clients could not get hotel rooms or were unable to return to Poland. In these cases the regional governors made payments from insurance or bank guarantees. Prof. dr hab. Mirosław Nesterowicz Nicolaus Copernicus University Toruń, Poland Travel Law in Poland
Polish travel law is fully adapted to the standards of the European Union and international Conventions. The most important regulations are the following: 1) Tourist Services Act of 29 August 1997 (Law Journal 2001 No 55, item 578), which implements Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. 2) Act of 13 July 2000 (Law Journal No 74, item 855), which implements Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis. 3) Act of 24 July 1998 (Law Journal No117, item 758), which amends art. 846 to 852 of the Civil Code (1964) concerning liability of hotel keepers, which implements the Convention of the European Council of 17 December 1962 on the Liability of Hotel-Keepers concerning the Property of their Guests. 4) Conventions concerning air passenger carriage (Warsaw 1929), maritime carriage (Athens 1974), rail carriage (Bern 1980). In internal transport, the Air Carriage Act (2002) and the Maritime Code (2001) are fully adjusted to the conventions. 5) The Road Transport Act (2001) and the INTERBUS Treaty (2000). The implementation of the Package Tours Directive into Polish law is of the greatest importance. Before 1997, there had been no legal regulation in Poland which would refer to the establishment and operation of travel agencies. Any person who registered with the local authorities could open a travel agency. Thus, there occurred abuses to the detriment of customers. Until 2004 the law required a licence necessary to run a travel agency as a tour operator, which was issued by the regional governor (wojewoda). The applicant had to: - prove that he has appropriate education and practice in the field of tourism; - prove that he has no criminal record; - produce a bank or insurance guarantee or an insurance contract to protect his customers against insolvency. In 2004 – to ensure greater freedom of economic activity – the licence was replaced by a registration procedure. All the other conditions that had to be fulfilled in order to run a travel agency remained unchanged The regional governor is authorized to control the tourist business conducted by the entrepreneur. In case of a violation of the requirements of the law, the regional governor may issue a decision prohibiting the exercise of tourist business for a period of 3 years. The regulation does not infringe upon the principles of freedom of trade, as everyone who fulfils the conditions required shall be granted registration. A travel agency must ensure reliability, solvency and the conduct of business at an appropriate level. The freedom of trade must have certain limitations: it must be balanced with consumer protection. Numerous provisions of the law implementing Directive 90/314/EEC deal with consumer protection (art. 11-19). The Civil Law Commission developed a draft of a travel contract as a new innominate contract of the Civil Code. The bill has not yet been passed. The travel contract shall be treated as a mixed contract whose elements are deducted from various types of contract of the Code and which has its own features to which the provisions of the Tourist Services Act and appropriate provisions of the Civil Code are applied (the judgement of the Supreme Court of 25 February 1986, III CZP 2/86, OSPiKA 6/1986, item 113). The travel agent (tour operator) has pre-contractual obligations towards the customer, which consist in granting thereto all information concerning the travel. The law defines in detail the information that must be included in the contract (the date of travel, its programme, means of transport, hotel, price, term of payment, tourist insurance, fulfilment or failure to fulfil the contract, termination of contract, complaint proceedings etc.). Similar to the Package Tours Directive, the liability of the travel agent is based on strict liability; it is independent of his fault or the fault of his contractors. The travel agent is not liable only if he proves that failure to fulfil or improper fulfilment of the contract is caused exclusively by: 1) an act or an omission of the customer; 2) acts or omissions of third parties who/which did not participate in the provision of services defined in the contract, if these acts or omissions could be neither foreseen nor avoided, or 2) force majeure. The most controversial issue of the travel agent’s liability for third parties (subcontractors – other travel agents, carriers, hotels, restaurant owners) has been settled in Polish law for a long time. The travel agent is strictly liable pursuant to art. 474 of the Civil Code, which stipulates that the debtor is liable for the acts or omissions of persons whom he uses to perform his obligation, as well as for the acts or omissions of any person to whom he entrusts the performance of his obligation in the same way as for his own acts or omissions. The principle of contractual liability for third parties was emphasized by the Supreme Court in its judgement of 28 March 1968 (I CR 64/68, PUG 4/1969). In the judgement the Court claimed that: “The travel agent is liable not only for the failure to organize medical care for the participants in a foreign package tour, but also for the acts or omissions of a foreign health care organization with which he had contracted for the fulfilment of obligations in this area”. Although the case concerns only a single issue mentioned in the judgement, the same must be true for other contractors of a travel agent that provide services to travellers. In the 25 February 1986 judgement (III CZP 2/86, OSPiKA 6/1986, item 113) the Supreme Court, based on art. 474 of the Civil Code, claimed that: “The travel agent is liable for the acts or omissions of foreign third parties with which he had contracted to fulfil his obligations to provide food to travellers in a foreign package tour even if he had no possibility to control or supervise these persons”. In the case in question the travellers suffered from serious food poisoning in a “Balkantourist’ restaurant. In its judgement of 13 January 1989 (III CZP 112/88, Pi 29/1989) the Supreme Court adjudicated the following: “The travel agent is liable for the acts or omissions of foreign third parties with which he had contracted to fulfil his obligations concerning hotel services provided to the participants in a foreign package tour based on the provisions of the Civil Code on the liability of hotel keepers and similar institutions (art. 846-852 of the Civil Code)”. In turn, in a case in which the participants in a sea voyage of the Stefan Batory transatlantic liner managed in November 1986 by Sportstourist were not allowed to disembark in Dakar because they did not have Senegalese visas, the Supreme Court in its judgement of 23 March 1990 (ICR 47/900) claimed that it occurred because the tour operator did not act carefully. He could not rely on the information provided by the sea carrier – Gdynia Polskie Linie Oceaniczne – that Senegalese visas were not required as, using for the purpose of obtaining this information a third party, he remained pursuant to art. 474 of the Civil Code liable as for an own wrong information. The liability of a tour operator foreseen in the law cannot be excluded or limited by contract (unless this is provided by an international convention) even if foreign law has been chosen. Since a long time, Polish jurisdiction has declared void clauses which exclude liability (for subcontractors, for personal injuries and damage to tourists’ luggage, for improper performance of the programme or for negligence), and which are stipulated by tour operators in the general terms and conditions for foreign package tours. As the package travel contract is a contract of adhesion, the tour operator determines the content of the contract and the customer has only the right to decide whether to adhere. The Tourist Services Act allows the travel operator to limit his liability towards the customer to double the price of the tour, but not with regard to personal injuries. Polish courts used to dismiss compensation for loss of enjoyment of holidays as they were of the opinion that there was no legal basis for it within the contractual liability provisions. Currently, after the judgement of the European Court of Justice of 12 March 2002 in the Leitner Case (C-168/00) the jurisdiction has been changing its opinion. The problems that appear in practice are that travel agencies often introduce unfair contract terms to contracts with clients. For instance, they exclude their liability for subcontractors (for the lack of hot water, central heating or air condition in a hotel, for loss or damage to luggage, for damage in transport), introduce too high deductions if the client cancels the trip or, which is a big problem, no-liability clauses in case of last minute trips (in return for a low price). Such clauses, unfavourable to clients and violating the law, are recognized as unfair contract terms by Urząd Ochrony Konkurencji i Konsumentów (Office for the Protection of Competition and Consumers – UOKiK). For instance, in 2003 UOKiK controlled standard form contracts of 229 major travel agencies and forbade the use of some contract terms. If a travel agency does not comply with UOKiK’s decision, UOKiK will bring proceedings in the Anti–Monopoly court in Warsaw (Court for the Protection of Competition and Consumers). This is the so-called “abstract” control. Apart from that Polish courts recognise unfair contract terms as void in cases brought before them against travel agencies by their clients. This is the so-called “in concreto”control. It is, however, obvious, that in comparison to the legal status from before the 1997 Act the situation has improved greatly. In the last few years there have been around 10 bankruptcy cases of travel agencies who failed to pay hotel keepers abroad or air carriers, which resulted in the fact that clients could not get hotel rooms or were unable to return to Poland. In these cases the regional governors made payments from insurance or bank guarantees. Prof. dr hab. Mirosław Nesterowicz Nicolaus Copernicus University Toruń, Poland Travel Law in Poland
Polish travel law is fully adapted to the standards of the European Union and international Conventions. The most important regulations are the following: 1) Tourist Services Act of 29 August 1997 (Law Journal 2001 No 55, item 578), which implements Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. 2) Act of 13 July 2000 (Law Journal No 74, item 855), which implements Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis. 3) Act of 24 July 1998 (Law Journal No117, item 758), which amends art. 846 to 852 of the Civil Code (1964) concerning liability of hotel keepers, which implements the Convention of the European Council of 17 December 1962 on the Liability of Hotel-Keepers concerning the Property of their Guests. 4) Conventions concerning air passenger carriage (Warsaw 1929), maritime carriage (Athens 1974), rail carriage (Bern 1980). In internal transport, the Air Carriage Act (2002) and the Maritime Code (2001) are fully adjusted to the conventions. 5) The Road Transport Act (2001) and the INTERBUS Treaty (2000). The implementation of the Package Tours Directive into Polish law is of the greatest importance. Before 1997, there had been no legal regulation in Poland which would refer to the establishment and operation of travel agencies. Any person who registered with the local authorities could open a travel agency. Thus, there occurred abuses to the detriment of customers. Until 2004 the law required a licence necessary to run a travel agency as a tour operator, which was issued by the regional governor (wojewoda). The applicant had to: - prove that he has appropriate education and practice in the field of tourism; - prove that he has no criminal record; - produce a bank or insurance guarantee or an insurance contract to protect his customers against insolvency. In 2004 – to ensure greater freedom of economic activity – the licence was replaced by a registration procedure. All the other conditions that had to be fulfilled in order to run a travel agency remained unchanged The regional governor is authorized to control the tourist business conducted by the entrepreneur. In case of a violation of the requirements of the law, the regional governor may issue a decision prohibiting the exercise of tourist business for a period of 3 years. The regulation does not infringe upon the principles of freedom of trade, as everyone who fulfils the conditions required shall be granted registration. A travel agency must ensure reliability, solvency and the conduct of business at an appropriate level. The freedom of trade must have certain limitations: it must be balanced with consumer protection. Numerous provisions of the law implementing Directive 90/314/EEC deal with consumer protection (art. 11-19). The Civil Law Commission developed a draft of a travel contract as a new innominate contract of the Civil Code. The bill has not yet been passed. The travel contract shall be treated as a mixed contract whose elements are deducted from various types of contract of the Code and which has its own features to which the provisions of the Tourist Services Act and appropriate provisions of the Civil Code are applied (the judgement of the Supreme Court of 25 February 1986, III CZP 2/86, OSPiKA 6/1986, item 113). The travel agent (tour operator) has pre-contractual obligations towards the customer, which consist in granting thereto all information concerning the travel. The law defines in detail the information that must be included in the contract (the date of travel, its programme, means of transport, hotel, price, term of payment, tourist insurance, fulfilment or failure to fulfil the contract, termination of contract, complaint proceedings etc.). Similar to the Package Tours Directive, the liability of the travel agent is based on strict liability; it is independent of his fault or the fault of his contractors. The travel agent is not liable only if he proves that failure to fulfil or improper fulfilment of the contract is caused exclusively by: 1) an act or an omission of the customer; 2) acts or omissions of third parties who/which did not participate in the provision of services defined in the contract, if these acts or omissions could be neither foreseen nor avoided, or 2) force majeure. The most controversial issue of the travel agent’s liability for third parties (subcontractors – other travel agents, carriers, hotels, restaurant owners) has been settled in Polish law for a long time. The travel agent is strictly liable pursuant to art. 474 of the Civil Code, which stipulates that the debtor is liable for the acts or omissions of persons whom he uses to perform his obligation, as well as for the acts or omissions of any person to whom he entrusts the performance of his obligation in the same way as for his own acts or omissions. The principle of contractual liability for third parties was emphasized by the Supreme Court in its judgement of 28 March 1968 (I CR 64/68, PUG 4/1969). In the judgement the Court claimed that: “The travel agent is liable not only for the failure to organize medical care for the participants in a foreign package tour, but also for the acts or omissions of a foreign health care organization with which he had contracted for the fulfilment of obligations in this area”. Although the case concerns only a single issue mentioned in the judgement, the same must be true for other contractors of a travel agent that provide services to travellers. In the 25 February 1986 judgement (III CZP 2/86, OSPiKA 6/1986, item 113) the Supreme Court, based on art. 474 of the Civil Code, claimed that: “The travel agent is liable for the acts or omissions of foreign third parties with which he had contracted to fulfil his obligations to provide food to travellers in a foreign package tour even if he had no possibility to control or supervise these persons”. In the case in question the travellers suffered from serious food poisoning in a “Balkantourist’ restaurant. In its judgement of 13 January 1989 (III CZP 112/88, Pi 29/1989) the Supreme Court adjudicated the following: “The travel agent is liable for the acts or omissions of foreign third parties with which he had contracted to fulfil his obligations concerning hotel services provided to the participants in a foreign package tour based on the provisions of the Civil Code on the liability of hotel keepers and similar institutions (art. 846-852 of the Civil Code)”. In turn, in a case in which the participants in a sea voyage of the Stefan Batory transatlantic liner managed in November 1986 by Sportstourist were not allowed to disembark in Dakar because they did not have Senegalese visas, the Supreme Court in its judgement of 23 March 1990 (ICR 47/900) claimed that it occurred because the tour operator did not act carefully. He could not rely on the information provided by the sea carrier – Gdynia Polskie Linie Oceaniczne – that Senegalese visas were not required as, using for the purpose of obtaining this information a third party, he remained pursuant to art. 474 of the Civil Code liable as for an own wrong information. The liability of a tour operator foreseen in the law cannot be excluded or limited by contract (unless this is provided by an international convention) even if foreign law has been chosen. Since a long time, Polish jurisdiction has declared void clauses which exclude liability (for subcontractors, for personal injuries and damage to tourists’ luggage, for improper performance of the programme or for negligence), and which are stipulated by tour operators in the general terms and conditions for foreign package tours. As the package travel contract is a contract of adhesion, the tour operator determines the content of the contract and the customer has only the right to decide whether to adhere. The Tourist Services Act allows the travel operator to limit his liability towards the customer to double the price of the tour, but not with regard to personal injuries. Polish courts used to dismiss compensation for loss of enjoyment of holidays as they were of the opinion that there was no legal basis for it within the contractual liability provisions. Currently, after the judgement of the European Court of Justice of 12 March 2002 in the Leitner Case (C-168/00) the jurisdiction has been changing its opinion. The problems that appear in practice are that travel agencies often introduce unfair contract terms to contracts with clients. For instance, they exclude their liability for subcontractors (for the lack of hot water, central heating or air condition in a hotel, for loss or damage to luggage, for damage in transport), introduce too high deductions if the client cancels the trip or, which is a big problem, no-liability clauses in case of last minute trips (in return for a low price). Such clauses, unfavourable to clients and violating the law, are recognized as unfair contract terms by Urząd Ochrony Konkurencji i Konsumentów (Office for the Protection of Competition and Consumers – UOKiK). For instance, in 2003 UOKiK controlled standard form contracts of 229 major travel agencies and forbade the use of some contract terms. If a travel agency does not comply with UOKiK’s decision, UOKiK will bring proceedings in the Anti–Monopoly court in Warsaw (Court for the Protection of Competition and Consumers). This is the so-called “abstract” control. Apart from that Polish courts recognise unfair contract terms as void in cases brought before them against travel agencies by their clients. This is the so-called “in concreto”control. It is, however, obvious, that in comparison to the legal status from before the 1997 Act the situation has improved greatly. In the last few years there have been around 10 bankruptcy cases of travel agencies who failed to pay hotel keepers abroad or air carriers, which resulted in the fact that clients could not get hotel rooms or were unable to return to Poland. In these cases the regional governors made payments from insurance or bank guarantees. | 
