Judikatūra

Package Travel Directive, Article 2, 2. Package Travel Directive, Article 2, 3. Package Travel Directive, ANNEX, (g)

The status of an undertaking as an organizer or a retailer (according to the meaning of Article 2 of Directive 90/313/EEC) can be determined based on what is provided in the Terms of Use of the undertaking’s website, especially where consumers have been acquainted with the Terms of Use.

The plaintiffs together purchased a package travel in the defendant’s online shop. After a while the defendant refunded the plaintiffs’ money and cancelled the travel. Due to this, the plaintiffs requested remedies from the defendant for the failure to perform the contract.

The defendant refused to compensate the plaintiffs and claimed that it is not an organizer, but merely a retailer and thus not liable for non-performance of the contract.

In reality, the defendant was registered in the national registers as both an organizer and a retailer within the meaning of Article 2 of Directive 90/314/EEC.

At the same time, the Terms of Use of the defendant’s website clearly indicated that the defendant was acting as a retailer. Under the given circumstances, the plaintiffs brought a claim before the court against the defendant for recovery of damages.

Can an undertaking’s status as an organizer or a retailer (according to the meaning of Article 2 of Directive 90/313/EEC) be determined based on what is stated in the Terms of Use of the undertaking’s website?

The court considered that consumers have an obligation to act diligently and acquire all the available information about a service they are purchasing. Furthermore, the court found that the plaintiffs were aware of Terms of Use of the defendant’s website which clearly indicated that the defendant acts as a retailer.

Thus, despite the defendant being registered also as an organizer, the court relied on the Terms of Use in finding that the defendant is a retailer. Since the law prescribed liability for the failure to perform contracts only to organizers, the court found that the defendant cannot be held liable.

URL: https://manas.tiesas.lv/eTiesasMvc/nolemumi/pdf/289165.pdf

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The court dismissed the plaintiff’s claim.