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Nov 17, 2017

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The book, edited by Vincenzo Franceschelli, Francesco Morandy and Carlos Torres, contains the following articles:

  • Vincenco Franceschelli, Causa and Consideration in Tourism Contracts in the frame of the EU 2015/2302 Directive
  • F. Javier Melgusa Arcos, The protection of tourists in Directive 2015/2302/EU of 25 November on package travel and linked travel arrangements
  • Marc McDonald, Linked travel arrangements and their protection under the new Package Travel Directive
  • Ernst Führich, The Implementation of the new Package Travel Directive in germany and its Ciritcal Issues
  • Laurence Jégouzo, Drective travel services: what*s new for tour operators for termination of the contract?
  • Sarah Prager, Liability for imporper performance of the holiday contract: the new regime
  • Michael Wukoschitz, "Extraordinary" Legislative Shortcomings in the New PTD
  • Antonia Paniza Fullana, Reassessment of the liability of tourism traders in the Directive (EU) 2015/2302 of the Eurpoean Parliament and of the Council of 25 November 2015
  • Francesco Torchia, The tourist package contract resolution and the right of withdrawal before the package
  • Stephen Mason, The future of the financial protection in UK and EU
  • Silvia Feliu Àlvarez de Sotomayor, Package travel and linked travel arrangements: International protection for traders or for travellers?
  • Julio Facal, Relevant aspects of international liabilty for tourism service providers
  • Diego Raul Gonzalez, Tourism and airports: travellers' & consumers' right to information?
  • Gianluca Rossoni, New Package Travel Directive (2015/2302/EU): Specific obligations of the retailer where the organiser ist established outside the European Economic Area
  • Jacqueline Tanti-Dougall, The Package Travel Insolvency Fund Regulations - the Maltese Perspective
  • Ana Branca Soeiro de Carvalho, Liabilty for error and teh right to repair - consequences of a legal imperative
  • Manuel David Masseno, On the relevance of big data for the formation of contracts regarding package tours or linked travel arrangements
  • Joandre Antonio Ferraz, Comparison between Travel Package Contracts in Directive 2015/2302 and in Brazil
  • and others more

The book is available here>>.

Mar 08, 2017

On Feb. 28, 2017 the Austrian Federal Ministy of Justice has published its draft for the implementation of the EU Package Travel Directive 2015/2302. Instead of the current provsions related to package travel in the Consumer Protection Act, there will be a separate Package Travel Act (Pauschalreisegesetz - PRG). This seems reasonable as the protection provided by the Directive is not limited to consumers only. On the other hand, it will lead to further fragementation of civil law and therefore it would have been better to include the new provsions in the Austrian Civil Code (ABGB).

The proposed PRG will contain provisions on information duties and obligatory contetn of the contract which are currently regulated by the Commercial Code. Although the new Act is of civil law nature, it provides for administrative fines if the organiser fails to comply with these duties.

The PRG introduces the concept of "travel arrangements" which fall somewhere in between a package and a sale of single services.

To a large extent, the proposed  implementation follwows  the wording of the Directive and therefore shows the same shortcomings like for instance the unfortunate defintion of  "unavoidable and extraordinary circumstances" which play a key role for liability and the right of withdrawal. Depending on the interpretation of the new wording, the organiser's liabilty may change from a fault liability with reversed burden of proof to strict liability.

The draft does n ot cover insolvency protection which will be subject to separate legislation.

The draft can be found in German at https://www.ris.bka.gv.at/Dokumente/RegV/REGV_COO_2026_100_2_1335456/REGV_COO_2026_100_2_1335456.pdf and the explanatory remarks are available at https://www.ris.bka.gv.at/Dokumente/RegV/REGV_COO_2026_100_2_1335456/COO_2026_100_2_1347174.pdf

Feb 17, 2017

Upon request for preliminary ruling lodged by the Commercial Court Vienna, the CJEU held that the communication of television and radio broadcasts by means of TV sets installed in hotel rooms does not constitute a communication made in a place accessible to the public against payment of an entrance fee. Although the distribution of a signal by means of TV and radio sets installed in hotel rooms constituted an additional service which had an influence on the hotel’s standing and, therefore, on the price of rooms, it could not be considered that that additional service was offered in a place accessible to the public against payment of an entrance fee. Consequently, the communication to the public of TV and radio broadcasts by means of TV and radio sets installed in hotel rooms does not fall within the scope of the exclusive right of broadcasting organisations provided for in Article 8(3) of Directive 2006/115.

CJEU Feb. 16, 2017, C‑641/15 - Verwertungsgesellschaft Rundfunk

Sep 09, 2016

In judgement C-160/15 of Sep 8, 2016, the European Court of Justice held that hyperlinks to protected works, which are freely available on another website without the consent of the copyright holder, are unlawful unless provided without the pursuit of financial gain by a person who did not know or could not reasonably have known the illegal nature of the publication of those works on that other website. If they are provided with the pursuit of financial gain knowledge of  the illegal nature of the publication must be presumed.

In his opinion, the Attorney General had argued that such hyperlinks would generally not constitute an act of ‘communication to the public’ regardless of any knowledge of an illegal nature of the publication on the other website.

The Court of Justice, however,  took a much more restrictve approach in favour of the right holders.

Full text of the judgment and the opinion of the Advocate General availbale at: http://curia.europa.eu/juris/liste.jsf?pro=&lgrec=de&nat=or&oqp=&dates=&lg=&language=en&jur=C%2CT%2CF&cit=none%252CC%252CCJ%252CR%252C2008E%252C%252C%252C%252C%252C%252C%252C%252C%252C%252Ctrue%252Cfalse%252Cfalse&num=C-160%252F15&td=%3BALL&pcs=Oor&avg=&page=1&mat=or&jge=&for=&cid=909693

Aug 05, 2016

In an opinion delivered on July 28, 2016 in case C-315/15, CJEU Advocate General Bot has concluded that bird strikes do not fall within the extraordinary circumstances defence currently available to air carriers according to Article 5 para 3 of Reg. (EC) 261/2004. In the Advocate General's opinion, such incidents are inherent in the normal exercise of the activity of a carrier and therefore not 'extraordinary'. Although an opinion of an Advocate Genrral is not binding to the Court but only advisory in nature, the judges in most cases follow the recommedations expressed therein. The CJEU judgement is to be expedcted within the next months.

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