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Case Details

Case Details
National ID link
Lidstaat België
Common Name BVBA Apollo Travel / Declerq en NV Sun International Holiday
Decision type Overige
Decision date 23/04/2003
Gerecht Hof van Beroep (NL)/Cour d'appel (FR)
Onderwerp
Eiser
Verweerder
Trefwoorden

Package Travel Directive, Article 1 Package Travel Directive, Article 3, 1.

1. The Contracting parties can stipulate that the Act of 16 February 1994 (“Travel Act”) is applicable to their contract.
2. The travel intermediary who does not indicate the name and the address of the travel organiser in a clear and unequivocal manner, is considered to be the travel organiser (art. 23, §4 Travel Act).
3. The third-party action (“vordering in vrijwaring”) of the travel intermediary against the travel organiser becomes prescribed in accordance with article 30 of the Travel Act.
On 3 March 1999 G. Declercq, first defendant, booked a (car) holiday in France trough Apollo Travel. The holiday consisted of two seven day stays.G. Declerq complained that the accommodation provided for in one of his destinations was not in conformity with the description thereof in the brochure and that the house was in an unacceptable dirty condition, as a result of which he had to shorten his stay.
By summons of 30 May 2000 G. Declerq therefore claimed damages from Apollo Travel amounting to EUR 4.502,99.
Apollo Travel sought refuge behind the travel organiser, Sun International Holiday, with whom he had organised the package tour.
The first judge considered that Apollo Travel acted itself as the travel organiser and as a result held Apollo Travel as such liable for the failing of the holiday of G. Declerq. The claim against Sun International Holiday was considered to have become prescribed.
Apollo Travel appealed against these two decisions.
In the legal doctrine there have been doubts whether or not a car holiday comes under the Travel Act. Here, the applicability of the Travel Act cannot be under discussion. The parties agreed mutually that the provisions of the Travel Act were applicable to their travel contract.
According to the Travel Act, Apollo Travel can be considered as the travel intermediary and Sun International Holiday as the travel organiser.
The complaints of G. Declerq do not concern the mediation, but the execution of the travel contract. In principle, only the travel organiser, and thus not the travel intermediary, can be held liable for the correct execution of the contract. However, when the real travel organiser is mentioned on the order form in an unclear manner, the travel intermediary is considered to be the travel organiser.
Article 23 §4 of the Travel Act indicates that the contract has to mention the name and address of the travel intermediary and the fact that he acts as a travel intermediary, besides the name and address of the travel organiser. If the travel intermediary does not observe this obligations, he will be considered as the travel organiser. And so did the court.
Also the decision of the first judge which declared the claim of Apollo Travel against Sun International Holiday to have become prescribed, was to be confirmed.
Pursuant to article 30 §2 of the Travel Act all claims on the basis of a travel contract to which the Travel Act applies become prescribed after one year from the date, which is stipulated in the contract, that determines the end of the performance.
The stay of G. Declerq came to an end on 14 August 1999. On thist day, the period of prescription started to run. That period expired on 14 August 2000. The third-party action of Apollo Travel has been filed on 28 November 2000 and has thus become prescribed.
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