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). 

Pets as baggage in air travel - CJEU in Iberia (C-218/24)

From an outsider's perspective, the recent judgment may appear controversial. "Pets as baggage" is likely to strike non-lawyers as dehumanising - suggesting that animals are treated as mere objects. However, lawyers may appreciate the legal advantages of such classification. Under international travel rules, such as the Montreal Convention, categorising pets as baggage can trigger compensation mechanisms if they are lost, or damaged, during transit. But does this legal framing actually benefit pet owners? 

In the given case, passengers on a flight from Buenos Aires (a city known for its large dog population) to Barcelona were travelling with a dog. Due to its size, the dog could not be accommodated in the cabin and was instead to be placed in the aircraft hold, inside a special pet carrier. The owner checked in the pet carrier, but tragically, "the dog left the pet carrier, ran around in the vicinity of the aircraft and could not be recovered" (para 16).

The Montreal Convention standardises compensation for lost baggage, unless passengers make a "special declaration of interest in delivery at destination" during check-in, and pay any required surcharge. In this case, the dog's owner did not make such a declaration. The legal issue then became whether the owner could claim compensation for non-material damages, or whether the Montreal Convention's baggage rules limited such claims. Spanish law recognises pets as sentient beings, and thus does not equate their loss with that of material things typically found in baggage (para 19).

The CJEU emphasised that the Montreal Convention is designed to define the limits of air carriers' liability for transporting passengers and their baggage (para 23). Since the Convention does not explicitly define "baggage," the term must be interpreted uniformly and autonomously (para 26). 

While the ordinary meaning of "baggage" refers to objects (para 29), the CJEU noted that for the Montreal Convention to apply to pets, they must be classified either as "passengers" or "baggage". Given this binary, the Court found "baggage" to be the more appropriate legal category (paras 33-34). Importantly, the Convention's liability limits for lost baggage cover both material and non-material damages, meaning the pet's owner could not claim further compensation from the air carrier (para 41).

This ruling ultimately favours air carriers by providing greater legal certainty regarding the types of claims passengers can make for lost items - including pets. It also shields carriers from the complexities of differing national laws on non-material damages. The decision reflects the pragmatic logic of international air travel law.

CfP: Collective Redress and Digital Fairness, deadline 1 June 2025

Dear readers, 

a quick note to highlight a great conference opportunity at the University of Amsterdam. 

The organisers of the conference "Collective Redress and Digital Fairness", which will be held at the University of Amsterdam on 10 and 11 December 2025,  have issued a call for papers open to scholars and practitioners who are interested in engaging with the conference's broad theme, namely "the intersection of collective redress and digital fairness, understood as the equitable treatment of individuals and society in the digital space" and who will bring an own insight with emphasis on (but not limited to) a number of central questions:

• 

  CfP flyer

  What are the theoretical and normative foundations of collective redress?
• How effective is collective redress in the digital legal sphere at international, European, and national levels?
• How do digital rights intersect with other branches of law (e.g., consumer and competition law), and what does this mean for collective actions?
• What impact does litigation have on the compliance and governance of digital corporations?
• How do private and public enforcement interact, and what role do collective actions play within this regulatory framework?
• What is the role of private law and private law remedies in shaping digital fairness, and how does it constrain or contribute to collective redress mechanisms?

Contributions may focus on procedural and substantive law aspects, as well as theoretical, doctrinal, and empirical studies from national, European, and transnational perspectives. 

Thanks to sponsoring by the Dutch foundation for Collective Actions research, selected speakers will be provided one night of accommodation in Amsterdam and a reasonable travel budget. How to apply? You find the submission requirements on ACT's website and in the flyer! Deadline for application is 1 June 20225.

Can we seek compensation for a GDPR breach if it caused great upset or inner discomfort? The AG Opinion in C-300/21, Österreichische Post

According to Article 82(1) of the GDPR any person who has suffered material or non-material damage as a result of an infringement of the Regulation has the right to receive compensation from the controller or processor for the damage. It turns out that the exercise of this right in practice raises some questions, especially if the damage caused by the infringement would consist of a "great upset" or a "loss of confidence". Recently, the Advocate General Campos Sánchez-Bordona commented on this issue (see: case C-300/21 Österreichische Post). 

Facts of the case

The case concerns the processing of personal data by an Austrian postal company (Österreichische Post AG). The company had been collecting personal data on the Austrian public's affinities for political parties since 2017. Information on political preferences was inferred based on various socio-demographic characteristics. Such processing did not please "UI" (that's how the data subject is called by the AG in the opinion). More specifically, he did not like the way the company classified him as a person sympathizing with one of Austria's political parties. UI therefore entered into a dispute with the company, pointing out, for instance, that he had not consented to the processing of his personal data. As we read in the opinion, UI „was upset by the storage of his party affinity data and angered and offended by the affinity specifically attributed to him by Österreichische Post” (para. 10). What is more, he claimed that such a „political affinity attributed to him is insulting and shameful, as well as extremely damaging to his reputation” (para. 11). Therefore he demended compensation of EUR 1 000 in respect of non-material damage (inner discomfort).

Both the court of first instance and the appellate court rejected his claim. However, following an appeal to the Oberster Gerichtshof (Supreme Court, Austria), the court raised several doubts, referring the following questions to the Court of Justice for a preliminary ruling:

"1. Does the award of compensation under Article 82 of the GDPR also require, in addition to infringement of provisions of the GDPR, that an applicant must have suffered harm, or is the infringement of provisions of the GDPR in itself sufficient for the award of compensation?

2. Does the assessment of the compensation depend on further EU-law requirements in addition to the principles of effectiveness and equivalence?

3. Is it compatible with EU law to take the view that the award of compensation for non-material damage presupposes the existence of a consequence of the infringement of at least some weight that goes beyond the upset caused by that infringement?"

Opinion of the AG

The AG presented an interesting analysis of Article 82 of the GDPR, taking into account different types of interpretation (literal, historical, contextual and purposive). There are several important statements that deserve attention: 

1. Assuming that under Article 82 of the GDPR a data subject could be awarded compensation for a breach of the Regulation, despite the absence of any damage, would be inconsistent with the fundamental purpose of civil liability. This purpose is to compensate for the damage suffered by the data subject. If the damage could not be identified, the compensation then awarded would not fulfil the aforementioned function, but would be more like a punishment and a sanction for the infringer (paras 29-30). It is true that punitive damages may exist in both EU and national law, but the GDPR does not contain this type of reference (paras 39, 44, 49-50).

2. The AG's position is that a mere breach of the GDPR does not give rise to a presumption of automatic harm to the data subject (paras 56-59). As can be inferred from the Opinion, this is the presumption made by the parties to the proceedings, indicating that a breach leads to a loss of control over the data and thus causes harm to the data subject. However, the AG considers that not every loss of control over data necessarily leads to harm (para. 62) and, furthermore, that giving data subjects as much control over data as possible may not necessarily be derived from the GDPR provisions (para. 74). He states: „where a data subject does not consent to processing and processing is carried out without another legitimate legal basis, that is not a ground for the data subject to receive financial compensation on account of the loss of control over his or her data, as though that loss of control itself amounted to damage that is eligible for compensation” (para. 77).

3. The compensation for non-material damage regulated by Article 82 of the GDPR does not cover the mere upset that a person may feel due to a breach of Regulation 2016/679. It is up to the national courts to determine when, due to its characteristics, a subjective feeling of displeasure can be considered as a non-material damage in a given case (conclusion - para. 117).

Given the facts of the case, the AG's answers to the preliminary questions do not seem surprising. Nonetheless, some views are arguable, such as that „it is not straightforward to conclude from the GDPR that its objective is to grant data subjects control over their personal data as a right in itself” (para. 74). 

In my view, one of the primary objectives of the GDPR is precisely to give individuals control over their data, or even to 'restore' that control. This conclusion can also be drawn based on the provisions of other data flow regulations in the EU, such as the Data Governance Act* or the Data Act proposal**. It is clear that the opinion was given based on the GDPR provisions, but I guess they should not be interpreted without regard to the broader regulatory context. That said, we eagerly await the Court's final verdict.

* For instance, in recital 5 of the DGA it is stated that it "is necessary to increase trust in data sharing by establishing appropriate mechanisms for control by data subjects". A similar idea is expressed in recital 30 in the context of data intermediation services: "data intermediation services providers seek to enhance the agency of data subjects, and in particular individuals’ control over data relating to them". Maybe it is not directly indicated that the purpose of the DGA is to "grant control over data", but still this can be deduced from both the content and the particular objectives of the legal instruments adopted in the DGA. 

** See, for example, recital 78 of the proposal: "To foster further trust in the data, it is important that safeguards in relation to Union citizens, the public sector and businesses are implemented to the extent possible to ensure control over their data". Again, it is not stated expressly, but without ensuring control over data, the other objectives of the regulation will not be achieved. From this perspective, granting control over data may appear as one of the purposes.