(1) Article 7 of Directive 90/314 places the travel organiser under an obligation to have sufficient security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency or bankruptcy, the purpose of that security being to protect consumers against the financial risks arising from the insolvency or bankruptcy of the travel organiser (see Joined Cases C-178/94, C-179/94 and C-188/94 to C-190/94). Thus, the fundamental objective of that provision is to ensure that the repatriation of the consumer and the refund of money paid over are guaranteed in the event of insolvency or bankruptcy on the part of that travel organiser.
The Court recalls that Article 7 of Directive 90/314 imposes an obligation as to result, that result being to guarantee package travellers the refund of money paid over and their repatriation in the event of the travel organiser’s bankruptcy, and that such a guarantee is specifically aimed at arming consumers against the consequences of the bankruptcy, whatever the causes of it may be.
In light of the foregoing, the answer to the first question is that Article 7 of Directive 90/314 must be interpreted as precluding national legislation where the detailed rules laid down therein do not achieve the result of ensuring that the consumer is provided with an effective guarantee of the refund of all money paid over and repatriation in the event of insolvency on the part of the travel organiser.
(2) According to the case-law of the Court, an infringement is sufficiently serious where, in the exercise of its legislative powers, an institution or a Member State has manifestly and gravely disregarded the limits on the exercise of its powers. Factors which the competent court may take into consideration include the clarity and precision of the rule breached (Case C-392/93).
National legislation properly transposes the obligations under Article 7 of Directive 90/314 only if, whatever the detailed rules laid down in that legislation, it achieves the result of providing the consumer with an effective guarantee of the refund of all money paid over and repatriation in the event of the travel organiser’s insolvency.
A Member State has no discretion as regards the ambit of the risks that fall to be covered by the security to be provided by the travel organiser or retailer for the benefit of consumers. It is for the referring court to determine whether the criteria laid down by the Member State concerned for setting the amount of the security have the object or effect of limiting the ambit of the risks that fall to be covered by the security, in which case they would clearly be incompatible with the obligations under Directive 90/314 and would constitute a sufficiently serious infringement of EU law, which, subject to a finding of a direct causal link, might give rise to liability on the part of the Member State concerned.
URL: http://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1472820879540&uri=CELEX:62013CO0430
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