Case law

  • Case Details
    • National ID: V CNP 61/15
    • Member State: Poland
    • Common Name:link
    • Decision type: Supreme court decision
    • Decision date: 25/08/2016
    • Court: The Supreme Court
    • Subject:
    • Plaintiff: A.K.
    • Defendant: N. Spółka z o.o. w W
    • Keywords: consumer rights, package travel, travel, unfair terms
  • Directive Articles
    Unfair Contract Terms Directive, Article 6, 1. Package Travel Directive, link
  • Headnote
    (1) In interpreting the provisions of the Act of 29 August 1997 on Tourism Services, the court should take into account the jurisprudence of the Court of Justice of the European Union.

    (2) The court should always assess whether a provision of a contract for tourism services is an abusive clause and therefore not binding on the client.
  • Facts
    The plaintiff and his family reserved flights from Katowice to Antalya and from Antalya to Katowice. Before the return flight he checked the hour of the departure on the defendant's website. The plaintiff did not find any information concerning a change of the departure time.

    Furthermore, the defendant did not inform him about any potential change. When the plaintiff arrived at the airport in Antalya at 4.30 p.m., it turned out that the plane had left that morning. As a result, the plaintiff had to organize a new flight and pay for it himself.

    The plaintiff filed a lawsuit against the defendant - the organizer of the flight, demanding that it cover the costs he incurred in order to return to Poland.

    The Regional Court pointed out that the defendant is liable on the risk basis and that it the cannot be held liable because the non-performance of the contract was due to the plaintiff's failure. The Regional Court emphasized that the contract for travel services clearly stated that the time of departure can be changed. The specific provisions of the contract stated that the client had to call to the organizer 24 hours before the time of departure and confirm the time of the flight. The Regional Court ruled that the plaintiff did not fulfill his contractual obligation concerning confirmation of the departure time and therefore he cannot demand any compensation.

    The plaintiff appealed to the District Court but his appeal was dismissed. The District Court also pointed out that the plaintiff did not fulfill his obligation and did not confirm the final time of departure, in spite of being aware that this time could be changed.

    The plaintiff submitted a complaint to the Supreme Court, claiming that the final adjudication of the District Court was contrary to law .
  • Legal issue
    In assessing the District Court's interpretation of Article 11a (1) of the Act on Tourism Services, the Supreme Court (hereinafter "the Court") pointed out that it may raise some doubts. The abovementioned article provides that the organizer of tourism services is liable for the lack of or inappropriate fulfillment of the contract for tourist services, unless this lack of or inappropriate fulfillment is exclusively the result of the actions or negligence of the client.

    The Court emphasized that specific provisions of the Civil Code oblige both parties to cooperate during the performance of a contract. The due diligence of the debtor conducting a business activity should be assessed in the light of the professional character of this activity.

    According to the Court, the District Court's opinion that the plaintiff was solely responsible for the non-performance of the tourism services cannot be accepted. In the Court's opinion, the defendant should have informed the plaintiff about the change of the departure time because it follows from the rules of cooperation between the parties.

    The Court also pointed out that the Act on Tourism Services directly refers to the provisions of the consumer protection . In this context, Directive 93/13/EEC on unfair terms in consumer agreements and the jurisprudence of the European Union Court of Justice are of key importance. The Court emphasized that when interpreting the provisions of the Act of 29 August 1997 on Tourism Services, courts should take into account the jurisprudence of the Court of Justice of the European Union. In consequence, courts should always assess whether a provision of a contract for tourism services is an abusive clause and therefore not binding on the client.

    The Court ruled that the decision of the District Court was contrary to the purpose of the Act on Tourism Services and that the plaintiff's complaint was justified.
  • Decision

    (1) Should the court take into account the jurisprudence of the Court of Justice of the European Union when interpreting the provisions of the Act of 29 August 1997 on Tourism Services?

    (2) Should the court assess whether a provision of a contract for tourism services is an abusive clause and therefore not binding on the client?

    URL: N/A

    Full text: Full text

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  • Result
    The Supreme Court approved a complaint of the plaintiff.