Case C‑578/19

X

v

Kuoni Travel Ltd

(Request for a preliminary ruling from the Supreme Court of the United Kingdom)

Judgment of the Court (Third Chamber), 18 March 2021

(Reference for a preliminary ruling – Directive 90/314/EEC – Article 5(2), third indent – Package travel, package holidays and package tours – Contract concerning package travel concluded between a travel organiser and a consumer – Liability of the travel organiser for the proper performance of obligations arising from the contract by other suppliers of services – Damage resulting from the acts of an employee of a supplier of services – Exemption from liability – Event that cannot be foreseen or forestalled by the travel organiser or the supplier of services – Concept of a ‘supplier of services’)

1. Approximation of laws – Package travel, package holidays and package tours – Directive 90/314 – Contract concerning package travel concluded between a travel organiser and a consumer – Liability of the organiser for the proper performance of the obligations arising from the contract by other suppliers of services – Grounds for exemption – Non-performance or improper performance of those obligations due to an event which the organiser or the supplier of services could not foresee or forestall – Concept of ‘supplier of services’ – Employee of a supplier of services – Not included

   (Council Directive 90/314, Art. 5(1), (2), third indent, and (3))

   (see paragraphs 35-42, operative part.)

2. Approximation of laws – Package travel, package holidays and package tours – Directive 90/314 – Contract concerning package travel concluded between a travel organiser and a consumer – Liability of the organiser for the proper performance of the obligations arising from the contract by other suppliers of services – Grounds for exemption – Non-performance or improper performance of those obligations due to an event which the organiser or the supplier of services could not foresee or forestall – Concept of an ‘event that could not be foreseen or forestalled’ – Damage resulting from the acts of an employee of a supplier of services – Not included – No exemption from liability

   (Council Directive 90/314, Art. 5(1) and (2), third indent)

   (see paragraphs 43-50, 56-63, operative part)

Résumé

The applicant, X, and her husband entered into a package travel contract with Kuoni Travel Ltd (‘Kuoni’), a travel organiser established in the United Kingdom. During her stay, X encountered N, an employee of the hotel who, on the pretext that he wished to accompany her to reception, raped and assaulted her.

X claimed damages against Kuoni in respect of the rape and assault suffered, on the ground that these were the result of the improper performance of the package travel contract as well as a breach of the 1992 Regulations. ( 1 ) Kuoni contested those claims, relying on a clause in that contract referring to the conditions under which it incurs liability for the proper performance of its contractual obligations, ( 2 ) together with a provision of the 1992 Regulations concerning its exemption from liability where the failure to perform or improper performance of the contract are due to an event which it or another supplier of services could not foresee or forestall. ( 3 )

Following an appeal against the dismissal of X’s claim for compensation, the Supreme Court of the United Kingdom referred questions to the Court of Justice for a preliminary ruling on the scope of the third indent of Article 5(2) of Directive 90/314, in so far as it provides for a ground for exemption from liability of the organiser of package travel from the proper performance of the obligations arising from a contract relating to such travel concluded between that organiser and a consumer and governed by that directive. In answer to those questions, the Court held that that provision must be interpreted as meaning that, in the event of the non-performance or improper performance of those obligations resulting from the actions of an employee of a supplier of services performing that contract, that employee cannot be regarded as a supplier of services for the purposes of the application of that provision and that the organiser cannot be exempted from its liability arising from such non-performance or improper performance, pursuant to that provision.

Findings of the Court

The Court recalls, first, that Directive 90/314 establishes a system of contractual liability for package travel organisers in respect of consumers who have concluded a contract with them for such travel, from which there may be no exclusion by means of a contractual clause. ( 4 ) The only exemptions from such liability which are allowed are those exhaustively set out in Directive 90/314. ( 5 ) One of the special features of that liability of travel organisers is that it extends to the proper performance of the obligations arising under the package travel contract by suppliers of services.

Next, as regards the concept of ‘supplier of services’, the Court finds that it is not defined either by Directive 90/314 or by an express reference in that directive to the laws of the Member States, with the result that it must be given an autonomous and uniform interpretation. Given the usual meaning of that concept and the fact that the obligations arising under a package travel contract may be performed through persons other than the organiser, it must be understood as referring to a natural or legal person, who is distinct from the travel organiser and provides services for remuneration. However, the Court states that an employee of a supplier of services cannot himself or herself be a supplier of services within the meaning of Directive 90/314 since, unlike a supplier of services, he or she has not concluded any agreement with the package travel organiser and he or she performs his or her work in the context of a relationship of subordination with his or her employer and therefore under the latter’s control. Nevertheless, the Court does not rule out the possibility that the acts or omissions of such an employee may, for the purposes of the system of liability laid down in Directive 90/314, be treated in the same way as those of the supplier of services which employs him or her. The Court finds that the non-performance or improper performance of the obligations arising from the package travel contract, despite having its origin in acts committed by employees of a supplier of services, is such as to render the organiser liable. That contractual liability is incurred where, first, there is a link between the act or omission which caused damage to that consumer and the organiser’s obligations under that contract and, secondly, those obligations are performed by an employee of a supplier of services who is under the latter’s control. In the absence of such liability, an unjustified distinction would be drawn between the liability of organisers for the acts committed by their suppliers of services and the liability arising from the same acts committed by employees of those suppliers of services performing the obligations arising from a package travel contract, which would enable an organiser to avoid its liability.

Lastly, the Court recalls that, while there may be a derogation from the rule laying down the liability of organisers, the ground for exemption from such liability which covers situations in which non-performance or improper performance of the contract is due to an event which the organiser or supplier of services could not foresee or forestall ( 6 ) must be interpreted strictly, autonomously and uniformly. The event which cannot be foreseen or forestalled to which that ground for exemption refers differs from the case of force majeure, and must, since the ground for exemption is based on the absence of fault on the part of the organiser or the supplier of services, be interpreted as referring to a fact or incident which does not fall within their sphere of control. As the acts or omissions of an employee of a supplier of services resulting in the non-performance or improper performance of the organiser’s obligations vis-à-vis the consumer do fall within that sphere of control, they cannot be regarded as events which cannot be foreseen or forestalled. Accordingly, the organiser cannot be exempted from its liability arising from such non-performance or improper performance of the contract.

( 1 ) The Package Travel, Package Holidays and Package Tours Regulations 1992 (‘the 1992 Regulations’) of 22 December 1992 transposed Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 1990 L 158, p. 59; ‘Directive 90/314’) into United Kingdom law.

( 2 ) Under Clause 5.10 (b) of the contract, the travel organiser incurs liability where, owing to fault attributable to it or attributable to one of its agents or suppliers, any part of the holiday arrangements booked before departure from the United Kingdom is not as described in the brochure, unless the damage caused to the other contracting party or a member of his or her group is due to fault attributable to the other contracting party or has been caused by unforeseen circumstances which, even with all due care, the organiser, its agents or suppliers could not have anticipated or avoided.

( 3 ) Pursuant to Regulation 15(2)(c)(ii) of the 1992 Regulations, ‘the other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because [of] an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall’.

( 4 ) Article 5(3) of Directive 90/314.

( 5 ) Article 5(2) of Directive 90/314.

( 6 ) Article 5(2), third indent, of Directive 90/314.