Defandant, an Austrian association organising international student exchanges including free accomodation with host families, was offering a 6 day city trip to New York for students participating in the exchange programme in the U.S. and a 3 day city trip to London for students participating in the exchange programme in U.K. The trips included accomodation, sightseeing and recreational activities as well as workshops to prepare the students for their stay in the respective country. The trips were offered at fair market value. Defandant also offered flight tickets in connection with said trips.Plaintiff, an Austrian association to combat unfair competition, filed a law suit requiring defendant to cease and desist frompursuing travel business in connection with international student exchanges by offering city trips of several days duration, including transportation, accomodation and other tourist services (sightseeing) beyond the period of school attendance or stay with host families at an inclusive price and thus organising packages without tour organiser licence and/or insolvency coverage and/orpursuing travel business in connection with international student exchanges without travel agency licence by providing flight tickets from/to Austria and/or within country of destination.Court of first instance (Handelsgericht Wien) and court of appeal (Oberlandesgericht Wien) both granted the claim.Upon further appeal by defendant, Austrian Supreme Court (OGH)revised the judgements and dismissed the claim in regard to package toursrepealed the judgements remanding the case to the court of first instance in regard to flight tickets.Supreme court referred to ECJ judgement C-237/97 – AFS in which ECJ had held that Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours did not apply to travel comprising student exchanges of about six months’ or a year’s duration; the purpose of which is attendance by the student at an educational establishment in the host country in order to familiarise himself with its people and culture; and during which the student stays with a host family as if he were a member thereof free of charge.The city trips offered could not be regarded in isolation from the exchange programmes as they were not offered separately but only in connection with same. As the trips also served the purpose to prepare the students for their stay in the host country and the style of living there, neither the exchange programmes themselves nor the city trips as parts of these programmes could be regarded “packages” in the meaning of Dir. 90/314/EEC.Concerning the flight tickets, Supreme Court considered defendants objection that the tickets were organised and issued by a licenced travel agent. As there were no findings on who really organised and issued the tickets, in further proceedings court of first instance will have to take evidence in this regard. If it turned out that they were indeed organised and issued by a licenced travel agent, defendant could have a strong argument to have acted based on a justifyable legal opinion.Full text of judgement 4 Ob 70/09m of Nov. 19, 2009 available in German here>>.
