The Court held that the third indent of Article 5(2) of Directive 90/314 cannot be relied on in order to exempt organisers from their obligation to make reparation for the damage suffered by consumers as a result of the non-performance or improper performance of obligations arising from package travel contracts concluded with those organisers, where those failures are the result of acts or omissions of employees of suppliers of services performing those obligations.
In the light of all the foregoing considerations, the answer to the questions referred to is that the third indent of Article 5(2) of Directive 90/314, in so far as it provides for a ground for exemption from liability of an organiser of package travel for the proper performance of the obligations arising from a contract relating to such travel, concluded between that organiser and a consumer and governed by that directive, must be interpreted as meaning that, in the event of non-performance or improper performance of those obligations, which is the result of the actions of an employee of a supplier of services performing that contract:
- that employee cannot be regarded as a supplier of services for the purposes of the application of that provision, and
- the organiser cannot be exempted from its liability arising from such non-performance or improper performance, pursuant to that provision.
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