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Case Details

Case Details
National ID I CSK 372/2010
Państwo członkowskie Polska
Common Name Piotr K. i Jakub K. v. T. Poland Sp. z o.o.
Decision type Inne
Decision date 24/03/2011
Sąd Sąd Najwyższy
Temat
Powód/powódka
Pozwany/Pozwana
Słowa kluczowe

Package Travel Directive, Article 5, 1. Package Travel Directive, Article 5, 2.

The provision of Art. 11a of the Act on Tourists Services should be applied in accordance with the interpretation of the Art 5 para 1 and 2 of the Directive No 90/314/EEC and may serve as a basis for claims for compensation for material and non-material damage arising from non-performance of a contract. Art 11a should be considered as a specific provision of art 471 of the Polish Civil Code.
A right to an “undisturbed rest” does not constitute a category of personal goods. However, it is not excluded that in some circumstances of a holiday travel may occurs situations, which will be considered simultaneously as infringements of personal goods, particularly health, personal immunity, personal freedom) and violation of provisions of Act on Tourist Services.
The plaintiffs Piotr K. and Jakub K concluded with a defendant T. Poland Sp. z o. o. a contract for tourist services. A subject to the contract was seven-day stay from 22 to 29 December 2005 for five persons in a four-star hotel in Playa do los Pocillos on the island Lanzarote. An agreement provided that tourists reach a holiday destination on their own costs and their own means. Tourists arrived at the place on 26 December and received an apartment. Conditions of accommodation deviate significantly from the four-star hotel standard. Due to a holiday period contact with the resident was impossible. Piotr K. reported his written complaint to the resident of local German branch of the tourist company. As a result of further complaints lodged in Poland the T. Poland Sp. z o. o. has been offered o voucher at the value of 150 euro.
Plaintiffs refused the proposed voucher and filed a lawsuit for infringement of the personal rights under provisions of Art. 23 and 24 Polish Civil Code (further: PlCC). They request payment of the amount of 12 536,52 zlotys reimbursement, redress of the amount of 5 000 zlotys for each of participants and added damages of 25 000 euro for a social purposes, as well as the three time publication of the apology in indicated newspa-pers. The Court of First Instance rejected the claim.
Plaintiffs appealed from the judgment pointing out an infringement of Art. 11a Act of 29 August 1997 on the tourist services (further: ATS) and Art. 23, 24 and 448 PlCC. The Court of Appeal overturned the judgement of the Court of First Instance in a part of claim for reimbursement and referred the case to the Court of the First Instance. In the remaining part the court of second instance dismissed the appeal. Plaintiffs appealed for cassation of this part of the judgement of the Court of Appeal.
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.
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