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Case Details

Case Details
National ID VSL I Cp 987/2012
Member State Slovenia
Common Name link
Decision type Supreme court decision
Decision date 30/07/2015
Court Supreme court
Subject
Plaintiff Unknown
Defendant Unknown
Keywords B2C, contract for the provision of accommodation, transport, catering or leisure services, risk, travel, travel organiser

Package Travel Directive, Article 5, 1. Package Travel Directive, Article 5, 2.

(1) Slovenian law provides an exhaustive list of non-material damage types and loss of enjoyment of the holidays is statutorily not recognized. However, in the present case and despite the fact that EU directives are in principle not directly applicable and require an implementing measure by which their provisions are transferred into national law of the Member States, the provisions of the first and second paragraph of Article 5 of the Package travel Directive can have a direct effect. The provision and its interpretation by the ECJ in the case C 168/00 Leitner v. TUI Deutschland is quite clear - it recognizes compensation for non-material damages arising from loss of enjoyment of the holidays.

(2) From the Slovenian passengers travelling to Tunisia or another country in North Africa at a similar level of civilizational development it is expected to consciously assume only those risks which are customary in these countries. A commonly known fact is that the sanitary conditions in Tunisia differ from those in developed European countries and therefore represent certain risks. The risk of inconveniences, such as traveller's diarrhea, which however does not develop into a serious infection and is therefore not abnormal or unacceptable to local conditions and accordingly do not exceed permissible limits, must be borne by the consumer and cannot be passed on the travel organiser.
With the challenged decision the first instance court decided that the travel organiser or the hotel keeper is not liable for a non-material damage which a consumer suffered during his travel to North Africa due to food poisoning in a hotel. The appellate court upheld the findings of the first instance court that the plaintiffs with high probability got their infection actually from the hotel food, which would constitute a non-material damage, but that damage was not caused by an unlawful act (omission of providing hygienic food).
The Supreme court upheld the decision of the appellate court, but adopted different reasoning. It ruled that the risk of digestive disorders that do not develop more severe (for example, infection with dangerous bacteria like salmonella) and occur as a reaction to changes in the environment and to local food must assume the passenger i.e. the consumer.
(1) Does Slovenian law recognize a non-material damage caused by loss of enjoyment of the holidays?
(2) Does inconveniences due to travellers’ diarrhoea, which a consumer suffers because of travelling to North Africa, constitute a sufficient legal ground for or compensation for non-material damage?
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The plaintiff's request was denied.