From dream vacation to legal dispute: CJEU in Tuleka (C-469/24)

Tirana Post 

Some consumers have truly bad luck, but their misfortune raises interesting legal questions. In Tuleka (C-469/24), the applicants booked a 1-week, all-inclusive package holiday in a 5-star hotel in Albania. What was meant to be a dream vacation quickly turned into an ordeal due to: 1) Demolition of hotel swimming pools, commissioned by Albanian authorities and carried out in the presence of media and police; 2) Consequential destruction of the seafront promenade and waterfront infrastructure, blocking access to the sea; 3) Long queues and limited meals at the hotel restaurant; 4) Construction work to add a fifth floor, with building materials transported by guest elevators. Unsurprisingly, the travellers filed a claim for damages upon their return. They sought compensation for material damages equal to the full price of the package (due to non-performance) and non-material damages (exceeding the amount of material losses). 

Article 13 of the Package Travel Directive 2015/2302 makes organisers responsible for the performance of the package, with an option for the Member States to extend that responsibility to retailers, as well. This is irrespective of which travel service provider is to perform the service. Organisers must offer alternative arrangements and otherwise remedy lack of conformity, unless doing so is impossible or entails disproportionate costs. In that case, Article 14 entitles travellers to a price reduction and appropriate compensation, unless the lack of conformity is "attributable to a third party unconnected with the provision of the travel services included in the package travel contract and is unforeseeable and unavoidable". The hotel indeed argued that the swimming pool's demolition was attributable to a third party (Albanian authorities) and constituted an extraordinary circumstance.

Burden of proof: Attribution does not require fault

Polish law implementing the PTD placed a burden of proof on organisers that the lack of conformity was due to the fault of a third party to escape liability. This higher threshold limited organisers' ability to exonerate themselves. The CJEU held this approach incompatible with Article 14(3)(b) PTD. The phrase "attributable to" must be interpreted autonomously, given its lack of definition in the PTD (para 31). Its ordinary meaning refers to an outcome resulting from a person's conduct - without implying intentional or negligent failure (para 32). Consequently, attribution does not require fault. This interpretation gives organisers more scope to avoid liability (para 33). This interpretation is further aligned with the Directive's structure and context (para 36). As the PTD provides maximum harmonisation, the Member States cannot impose stricter standards (para 38).

Full refund for serious non-conformity 

The second question inquired whether travellers could claim a full price reduction, that is the total cost of the package, even if some services were performed, but the lack of conformity was serious. Article 14(1) PTD grants an "appropriate" price reduction, assessed objectively across the entire period of non-conformity (para 45). The assessment must consider not only organisers' obligations "explicitly stipulated in that contract, but also those linked to it as a result of the purpose of that contract" (para 46). The longer and more serious the non-performance or improper performance, the greater the price reduction (para 47). Considering the objective of the high level of consumer protection behind the adoption of the PTD, the CJEU determines that where the lack of conformity is so severe that the package travel no longer serves its purpose, that is it is objectively no longer of interest to the traveller, travellers are entitled to a full refund (para 49).

Price reduction and compensation: Restorative, not punitive

The PTD allows claims for non-material damages, which are always more difficult to quantify. A question arose whether in estimating travellers' damages any punitive damages should be considered (para 56). The CJEU emphasises the language of Article 14 PTD and clarifies that it aims to restore contractual balance (para 57), and does not mention or permit punitive damages (para 58). Punitive damages are therefore excluded (para 60).

Extraordinary circumstances: Was demolition unforeseeable?

Finally, the Court considered whether the demolition order issued by national authorities qualified as an unavoidable and extraordinary circumstance. Article 3(12) PTD defines such circumstances as events beyond the control of the organiser that could not have been avoided with reasonable measures (para 62). Recital 31 PTD contains a non-exhaustive list (para 63) and prior case law likens this concept to force majeure (para 64), demanding these events were unforeseeable (para 65). An order to demolish the swimming pool was unlikely unforeseeable, as such decisions are typically debated and publicised (para 67). The national court must determine whether either the organiser or hotel manager was notified of the administrative procedure or the content of the decision before it was implemented (para 70).