The Court of the First Instance concluded that the right to holiday and pleasure of travel are not personal goods and are not protected by provisions of Art. 23 and 24 PlCC. A drastically low standard of the hotel and hotel services may not be considered as circumstances affected the personal rights. Such circumstances indicate rather the improper performance of the contract
The Court of Appeal in its judgement of 8 September 2009 considered that the the circumstances may result eventually the claim for compensation for non-performance of a contract and in this part the appeal is justified. However, the non-performance of the contract does not constitute grounds for compensation for non-material damage in Polish law. The allegation of infringement of personal rights was considered as unjustified. The court of Appeal observed that the Art. 5 of the Directive of 13 June 1990 on package travel, package holidays and package tours (further: "Directive No 90/314/EEC") aimed de lege ferenda to cover material and non-material injuries. The Court of Appeal appointed the judgment of the European Court of Justice of 12 March 2002 on Simone Leitner (ECJ Case C-168/00), but concluded that there is no basis to award a compensation for infringing of personal interests arising from non-performance of the services. The Court of Appeal appointed current jurisprudence and the systematics of the Polish Civil Code, where compensation for non-material damage is placed in a separate Title “tort”.
The Supreme Court examined the case and referred to provisions of the Act on Tourists Services implementing the Directive No 90/314/EEC. According to Art 11a ATS the tourist operator is liable for non-performance or improper performance of the package travel contract unless the non-performance or improper performance is due to or force majeure, or acts or omissions of a client or third parties not participating in performing of services provided by the agreement, if these acts or omissions could not be predicted or avoided. In a resolution of 19 November 2010 (file reference III CZP 79/2010) the Supreme Court recognised that Art. 11 a ATS may serve as a basis for compensation for non-material damage being a “wasted holiday”. The Supreme Court pointed out that the issue of the package travel is a subject of regulation of Art 5 para 1 and 2 of the Directive No 90/314/EEC, which are implemented to the Polish provision of Art. 11a ATS. Hence the Art 11a ATS should be applied in accordance with the interpretation of the Court Justice of the European Union of 12 March 2002 on Simone Leitner v. TUI. Deutschland GmbH (Case C-168/00). Art. 11a ATS should be, therefore, interpreted in accordance with Art 5 para 1 and 2 of the Directive and cover compensation for material and for non-material damage. The Supreme Court stressed also, that such interpretation does not harm provisions of the Polish system. Art 11a should be considered as a specific provision of art 471 PlCC, which allows only compensation against material damage arising from non-performance of a contract.
Referring to an infringement of personal goods (art 23 and 24 PlCC) the Supreme Court stressed that a right to an “undisturbed rest” dos not constitute a category of personal goods. However, it is not excluded that in some circumstances of a holiday travel may occurs situations considered simultaneously as infringements of personal goods, particularly health, personal immunity, personal freedom) and violating provisions of ATS.