Vrhovno sodišče Republike Slovenije
National case details
Registration ID: II Ips 61/2015
Instance: Cassation (review)
Case status: Pending
Area of law
Safeguards for access to justice
Not publicly available
Decision of the court of first instance
Not publicly available
Decision of the court of second instance
2 June 2016
Decision of Supreme Court of Republic of Slovenia (II Ips 61/201
Identification of the case
- Obligations code (art. 239, 239/2, 240, 243, 246, 883, 883/2, 892/1, 892/2, 892/4, 893, 893/2) Consumer Protection Act (art. 1a, 57e, 57e/2, 57g, 57g/1)
- COUNCIL DIRECTIVE of 13 June 1990 on package travel, package holidays and package tours (90/314/EEC)
Summary of the case
- The plaintiff bought the tourist arrangement (all-inclusive vacation package in Turkey) from the defendant who, based on the second paragraph of Article 883 of Slovenian Obligations code, is considered as the travel organizer.
- The plaintiff stayed in hotel A. in from July 14 to July 21, 2008.
- The plaintiff got infected with an infectious diarrhea, which was the result of food poisoning at Hotel A.
- The plaintiff claimed compensation for non-material damage (namely for psychological pain and inconvenience during treatment, for fear and loss of enjoyment of the holiday) and material damage (payment of taxi transfer from hospital to airport) and refund of the purchase money (price paid for tourist package) due to breach of contract on organized travel.
- The court of first instance decided that travel organizer did not acted with required diligence when choosing a hotel. The court of first instance awarded the plaintiff compensation for non-material damage in the amount of 5,500 EUR and compensation for material damage in the amount of 90,00 EUR.
- Higher court annulled the decision of the Court of first instance stating that the court of first instance misused substantive provisions.
- The Supreme Court of Republic of Slovenia granted the revision, annulled the decision of the court of the second instance (Higher Court). The case was remanded to Higher Court for re-examination.
- Civil judicial enforcement
The plaintiff sought for compensation for non-material and material damage.
The Supreme Court of Republic of Slovenia granted the revision, annulled the decision of the court of the second instance (Higher Court). The case was remanded to Higher Court for re-examination.
The main question in the case under analysis was which provision applies when assessing the liability of the defendant (travel organizer) when some individual services related to the performance of the organized travel were entrusted to third parties and performance of those services caused damage to the consumer.
In the case under analysis the relevant provisions which could apply were the following:
- provisions of Obligations Code on travel organiser`s liability if travel organiser performs individual services and provisions on travel organiser`s liability if individual services are entrusted to third persons (article 891 and 892 of Obligations Code),
- provisions of Consumer Protection Act on travel organizer`s liability (article 57e. and 57g. of Consumer Protection Act),
- provision (article 5, paragraph 2) of Directive no. 90/314/EEC.
The Supreme court decided that relevant provisions for assessing travel organizer`s liability for breach of contract on organized travel (article 57g. of Consumers Protection Act in connection to article 892 of Obligations Code) are general rules on contractual liability for damages (article 239 of Obligations Code), where exculpatory reasons from article 240 of Obligations Code in connection to article 246 of Obligations Code have to be interpreted in the light of the aim and goals of Directive no. 90/314/EEC. Furthermore, the Supreme Court expressly excluded applying the exculpatory cause provided in the second paragraph of article 892 of the Obligations Code (culpa in eligendo). The latter provision provides that: “Even if the services were provided in accordance with the contract and the regulations relating thereto the travel organiser shall be liable for damage incurred by the traveller during provision of the services, unless it is shown that in choosing the persons that performed the services the travel organiser acted with the diligence required.”
Namely, findings of the Court were that article 5, paragraph 2 of Directive 90/314/EEC was not properly implemented in Slovenian national legal system. To resolve the given situation, the Supreme Court further stated that the Directive cannot have direct effect. In the horizontal legal relations EU directives are not directly applicable and in principle also do not have direct effect. For situations where the directive is not properly implemented or when it is not (timely) implemented, the ECJ has developed alternatives to direct effect of directives, for example, euro coherent (consistent or loyal) interpretation, state damage liability and the use of the exclusionary doctrine. The application of this doctrine means that the directive can also be invoked in a dispute between private parties, but only in order to exclude national law which is inconsistent with the directive. In this case national provisions excluding EU inconsistent provisions should apply to resolve the dispute.
In the present case the Supreme Court on the basis of the exclusionary doctrine excluded the application of the second paragraph of article 892 of the Obligations Code.
Role of the Charter and role of the general principles on enforcement
The Charter was not directly applied in the case but an indirect reference can be noted as far as Articles 38 and 47 are concerned
- Explicit reference to Art. 41 CFREU (right to good administration)
- Explicit reference to Art. 6 ECHR
Article 22 (equal protection of rights) of Constitution of the Republic of Slovenia
The decision does not refer explicitly to these legal sources, however the court observed the principles regarding consumer protection provided in Article 38 of the CFREU and the right to be heard (art. 41 of the CFREU and art. 6 of ECHR).
In the case under analysis the Supreme Court itself stated that its decision did not violate the defendant’s right to be heard. Namely, according to Slovenian constitutional practice, plaintiff`s or defendant`s right to be heard is violated if the court decision is a complete surprise for one or another. Further, the Court gave reasons for its decision stating that first paragraph of article 57g. of Consumer Protection Act refers to the general provisions on obligations, that is, also to general provisions on liability for damages (art. 239 of the Obligations Code and the following). Given that the plaintiff invoked its claim on the breach of contract on organized travel, the defendant had to count with the fact that its liability for damages would in any case be assessed (also) on general provisions regarding liability for damages.
Elements of judicial dialogue
- Dialogue among same level national courts within the same Member State
- Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
- CJEU C-155/07, Kucukdeveci, 41/74, Van Duyn
Conform interpretation with EU law as interpreted by the CJEU Citation of foreign domestic judgment
The judicial dialogue was used as an instrument to justify the Supreme court decision to reverse the decision of the court of the second instance The judicial dialogue was also used to give instructions to the Court of second instance for new procedure.
No impact on national legislation has been identified yet.
Additional notes on the decision
SLOVENIAN OBLIGATIONS CODE
Travel organiser’s liability if travel organiser performs individual services Article 891
A travel organiser that in person takes over the transport or accommodation of travellers or other services connected to the provision of organised travel shall be liable to the traveller for damage according to the regulations applying to such services.
Travel organiser’s liability if individual services are entrusted to third persons Article 892
(1) A travel organiser that entrusts the transport or accommodation of travellers or other services connected to the provision of organised travel to third persons shall be liable to the traveller for damage incurred because such services were not performed or were only performed in part, in accordance with the regulations applying thereto. (2) Even if the services were provided in accordance with the contract and the regulations relating thereto the travel organiser shall be liable for damage incurred by the traveller during provision of the services, unless it is shown that in choosing the persons that performed the services the travel organiser acted with the diligence required. (3) The traveller shall have the right to demand the full or additional reimbursement of damage suffered thereby directly from the third person liable for the damage. (4) Insofar as the travel organiser reimburses damage to a traveller the former shall acquire all the rights the latter would have held against the third person liable for the damage (the right to recourse). (5) The traveller shall be obliged to surrender to the travel organiser documents and anything else the latter requires to exercise the right to recourse.