The plaintiff appealed the decision of the first instance court to the Regional Court claiming that the first instance court did not examine the factual state correctly and therefore incorrectly assessed the case at hand and came to an incorrect conclusion. It further claimed that the defendant has also duly received its general terms and conditions, in form of a text document delivered to the defendant's email address, in accordance with Article 5 (1) of the Directive of the European Parliament and the Council 97/7/EC from 20 May 1995 on the protection of consumers in respect of distance contracts (the "Directive 97/7/EC").
The defendant argued that the plaintiff's argumentation in relation to the Directive 97/7/EC is incorrect as the relevant article is governing the assessment of the invalidity of consumer contracts containing unfair contractual terms and not the unfair commercial practices. The defendant argued that unfair commercial practice is not a commercial term but rather an activity, pursuant to Section 7 (2) of Act No. 250/2007 on consumer protection, as amended.
The first instance court stated that the claim was unfounded as the plaintiff failed to prove that the contract for travel package was validly concluded between the plaintiff and the defendant. The offer for travel package in the form of general travel information at the website of the plaintiff cannot be regarded as a binding offer to conclude the contract in accordance with Section 43a (1) of Act No. 40/1964 Coll. Civil Code, as amended (the "Civil Code"), as the information is not addressed to a specific person or persons but rather to the wide unspecified group of people - internet users. The form that the defendant filled in may be regarded as valid offer. In order to validly conclude a contract such offer has to be accepted by the plaintiff in accordance with Section 43c of the Civil Code. The plaintiff failed to prove such acceptance or its delivery to the defendant in the course of the first instance proceeding. Even if the form on the website of the plaintiff stated "Contract for travel package" and in the end of the form the confirmation button stated "I confirm the contract for travel package," the plaintiff should have expressly let the defendant know that it accepts the offer to conclude a contract for travel package. Until such moment, even if the form is filled in with the defendant's information, it is not a validly formed contract. Therefore, even in the case when the plaintiff made available or sent the contract for travel package to the email of the defendant, such conduct is not specific enough to represent a valid acceptance of an offer to conclude a contract. Such form lacks (even scanned) signature or stamp of the plaintiff or other explicit demonstration of plaintiff's will to conclude the contract and be bound by such contract. The form in the case at hand is rather an overview of the conditions of the contract for travel package. The defendant therefore reasonably did not consider the computer generation of the Contract for travel package as valid contract formation as this is not the usual practice of the travel agencies as well as due to the fact that the defendant did not obtain the express evidence of the plaintiff's will to be bound by the contract since its computer generation.
Moreover, the general terms and conditions of the travel agency state that the travel agency, in case of electronic order through its online system, has the right to refuse the order in the period of three working days if due to the technical reasons it has accepted an order which it would otherwise refuse. Such wording suggests that the plaintiff itself regards the form received by electronic means through its online system only as an order and not as binding contract and also that the plaintiff may refuse such order despite its generation.
Furthermore, the conduct when a travel agency ambiguously concludes a contract and does not urge the payment of the deposit and shortly before the travel package is supposed to take place notifies the client that he is enlisted for the travel package and requires him to pay a high cancellation fee, may be regarded as conduct lacking professional care at minimum if not unfair commercial practice. The plaintiff did not act with professional care which is required when providing travel services and therefore the plaintiff shall bear the risk related to such conduct.
As to the plaintiff's claim that such conduct is routinely used by e-shops, the court stated that in case of e-shop the contract concluded is a contract for sale which is a consensual contract that does not need to be executed in written form. On the other hand, contract for travel package needs to be concluded in written or other suitable form in accordance with Section 741b of the Civil Code.
The first instance court also stated that it is not possible to cancel the contract which was never validly formed.
The court agreed with the opinion of the District Court that the offer for travel package in the form of general information on the travel packages published on the website of the travel agency (plaintiff) cannot be regarded as binding offer to conclude a contract pursuant to Section 43a (1) of the Civil Code, as such information is not addressed to the specific person or persons but rather to wide unspecified group of people - internet users. Only the filled in form may be regarded as an offer as it included the specific details of the contract such as number of persons, their names and the final destination. In order to validly conclude the contract, an acceptance from the plaintiff was required. The plaintiff failed to prove such acceptance as well as its delivery to the defendant. The court further stated that the plaintiff should clearly let the defendant know that the plaintiff accepts the offer to conclude a contract under the conditions stated by the defendant. The contract is validly formed once both parties express their will to be bound by the contract - until such time it is only a form which does not represent a valid contract even if it has the personal details filled in.