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Case Details

Case Details
National ID III CZP 18/16
Państwo członkowskie Polska
Common Name link
Decision type Supreme court decision
Decision date 19/05/2016
Sąd Sąd Najwyższy
Temat
Powód/powódka Mariusz W.
Pozwany/Pozwana S.I.P. Towarzystwo Ubezpieczeń S.A. in W.
Słowa kluczowe consumer, consumer rights, package travel, travel

Package Travel Directive, Article 7

The client of an insolvent travel agent can independently pursue a claim against the insurance company that is obliged on the basis of an insurance guarantee to refund payments made for a tourism event.
The plaintiff filed a lawsuit against an insurance company that was obliged to refund payments made by the clients of a travel agent for a tourism event that did not take place.

The defendant argued that the plaintiff is not entitled to pursue a claim because under the insurance guarantee contract only the chief executive officer of the province (voivodeship) is a beneficiary of the guarantee and can demand a refund of the payment.

The Regional Court ruled in favour of the plaintiff, but the defendant appealed to the District Court . In assessing the appeal, the District Court noted that there are two possible interpretations of the law concerning refunds for tourism events that did not take place.

According to the first interpretation, based on a literal interpretation of Article 5(5) of the Act on Tourism Services and the provisions of the insurance guarantee contract, only the chief executive officer of the province (voivodeship) is entitled to demand a refund on behalf of the clients of the insolvent travel agent.

According to the second interpretation, the clients of an insolvent travel agent are also entitled to demand a refund. The District Court emphasized that this interpretation is in compliance with Article 7 of Directive 90/314/EEC and the jurisprudence of the European Union Court of Justice.

The District Court finally referred the question to the Supreme Court.
Can the client of an insolvent travel agent independently pursue a claim against the insurance company that is obliged on the basis of an insurance guarantee to refund payments made for a tourism event if the event did not take place due to the fault of the travel agent?
The Supreme Court (hereinafter "the Court") noted that Article 5 of the Act on Tourism Services regulates the issue of refunding clients if a tourism event did not take place due to the travel agent's fault. The Court emphasized that this article implements Directive 90/314/EEC into Polish law. The provisions of this Directive increase the protection of clients against the effects of the non-performance or improper performance of tourism service contracts by the organizers of tourism events . The Court pointed out that Article 5 of the Act on Tourism Services should be interpreted in the light of the Directive's provisions and the jurisprudence of the Court of Justice of the European Union.

The Court noted that according to Article 7 of Directive 90/314, the organizer provides sufficient evidence of security to cover the refund of money paid over and the repatriation of the client in the event of the organizer's insolvency. Article 5 of the Act on Tourism Services, implementing Article 7 of Directive 90/314 into Polish law, provides that the organizer's obligation to refund payments should be secured by the conclusion of a bank or insurance guarantee contract or insurance contract covering the clients. The guarantee includes the right of the chief executive officer of the province (voivodeship) to demand the refund of payments on behalf of the clients of the insolvent organizer.

The Court referred to adjudications of the Court of Justice of the European Union, pointing out that the purpose of Article 7 of Directive 90/314 is to protect the consumer rights in the event of the insolvency or bankruptcy of a travel agent. The EU Court of Justice emphasized that Article 7 of the Directive grants individuals a special right to receive a refund of money paid for a tourism event if the event did not take place due to the fault of the travel agent.

The Court emphasized that guarantee contracts are concluded by the organizers only to secure the clients' interest and have to include provisions which ensure that clients receive a fast and effective refund of money and are repatriated.

The Court agreed that a literal interpretation of the provisions of law and the model insurance guarantee contract may raise some doubts because the model contract indicates that the chief executive officer of the province (voivodeship) is the beneficiary of the guarantee.

This may lead to an interpretation that the client is not a party to the legal relationship with the insurance company and therefore has no basis to pursue a claim against it.

Nevertheless, the Court pointed out that in the light of Article 7 of Directive 90/314 and Article 5 of the Act on Tourism Services, the client is the real beneficiary of the guarantee. Consequently, the Court ruled that the client of an insolvent travel agent can independently pursue a claim against an insurance company that is obliged on the basis of an insurance guarantee to refund the payments made for a tourism event .
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The Supreme Court approved the plaintiff's right to pursue a claim against the defendant.