Case law

  • Case Details
    • National ID: HD 200.055.912
    • Member State: Netherlands
    • Common Name:X v. Promosun Tours Nederland BV
    • Decision type: Other
    • Decision date: 15/03/2011
    • Court: Gerechtshof (Appellate court, Hertogenbosch)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Package Travel Directive, Article 4, 6. Package Travel Directive, Article 5, 2. Package Travel Directive, Article 5, 3. Package Travel Directive, Article 5, 4.
  • Headnote
    The organizer needs not only to reimburse the traveller but also to compensate him due to cancellation of the trip. The organizer did not announce in advance the minimal number of participants without which the trip would be cancelled. Moreover, he did not cancel in writing. There was no force majeure taking into account that the changes made by the charter company due to small number of reservations fall under the risk of the organizer.
  • Facts
    On the 29th of 2008 consumer concluded online a package travel contract with Promosun for holiday in Turkey in the period 26 April – 10 May 2008 for herself and her two daughters, with a return flight from Schiphol to Dalaman. The confirmation of this reservation was sent on the same day. On the 19th of April 2008 the consumer was called by Promosun and notified that the booked flight cannot take place due to the fact that the charter company had not enough reservations for the flight. The consumer was offered an alternative flight from Brussel to Alanya, and then from Alanya to Düsseldorf. Per fax on the 20th of April 2007 the consumer informed Promosun that she does not accept the alternative route and demands reimbursement of the travel price as well as compensation for damage. The main issue in the appeal concerned the damage that the travel agency was asked to reimburse.
  • Legal issue
    The travel organizer is obliged to compensate the damage of the consumer in two cases: when the non-performance of contractual obligations by a travel organizer led to the loss of enjoyment of holidays by the traveller (art. 7:510BW implementing art. 5 of the Directive) or when the package travel contract was cancelled by the organizer (art. 7:504BW implementing art. 4 of the Directive). In this respect art. 7:504 Sec. 3 BW makes an exception for the organizer’s obligation to compensate consumer’s damage in case the cancellation was caused either due to insufficient amount of reservations notified to the consumer in writing within the time defined in the contract, or when the cancellation was caused due to force majeure. Pursuant to art. 2d of the Gegevensbesluit georganisseerde reizen (Decree on package travels) the organizer needs to publish in the holiday prospectus the minimum number of trip participants without which the trip would not take place, as well as include this information in the package travel contract together with the date by which the cancellation would take place. The notification that the flights schedules, routes and times may be changed serves a different purpose and may not replace the notification of the required minimum number of participants. Promosun did not prove that they delivered such a notification to the consumer. Moreover, they cancelled the trip via phone and not in writing. Therefore, one exception to the obligation of compensating the consumer’s damage is excluded. The claim that the trip was cancelled due to force majeure is also unsuccessful. The fact that the charter company changed the flight due to too few reservations falls within the business’ risk of Promosun. Pursuant to art. 7:504 Sec. 3 Promosun needs to compensate not only the purchase price of the trip but also cost of the loss of enjoyment of the trip, to the maximum of the purchase price pursuant to art. 7:511 BW.
  • Decision

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