Tourism Law in Europe

DENMARK | MARIE JULL SØRENSEN AND KIM ØSTERGAARD 137 conclude an agreement with a third party, who subsequently also commits itself to the principal49. As noted above, the law of intermediaries rests on an agent/principal relationship (agent used in a broad sense) where it is not the retailer but the organiser who is bound by the contract, thus the organiser is liable to the traveller. Consequently, any legal claims or remedies in the case of non- -performance must be directed against the trader and not against the retailer. 5.2.2. IS THE RETAILER NEVER PARTY TO THE CONTRACT? As noted above, the basis of Danish law regarding intermediaries (and thus also retailers acting as platform intermediaries) is that they are only acting on behalf of another party, typically the performance debtor who offers in casu a tourism service via the digital platform. Hence, the intermediary is therefore not regarded as a liability subject to the performance creditor, and claims resulting from a breach of contract must be directed by the performance creditor against the performance debtor and not against the intermediary, in accordance with the general principle of contractual relativity. However, this starting point has been challenged by a Regional Court decision concerning the online platform GoLeif.dk50,51, which acts as a retailer (intermediary) where you can find airline tickets to locations all over the world. Via the platform, customers can compare prices from multiple airlines and proceed to purchase the tickets immediately. Since only airline tickets were purchased, it was outside the scope of the Package Travel Directive. In its ruling, the Danish Eastern Regional Court, contrary to the ruling of the District Court of Roskilde, stated that the GoLeif.dk platform was directly liable to a person who, in his capacity as a consumer, had bought two flights from Copenhagen to Nice, only for the airline to go bankrupt during the consumer’s stay in France. GoLeif.dk’s general terms and conditions contained a disclaimer stating that the platform provider only acts as an intermediary between the consumer and the airline carriers, therefore it is not the consumer’s contracting party. Hence, the judgment raises questions about whether it is possible to ascertain which cumulative requirements a platform intermediary (the retailer) must meet, in order to have a contractually valid 49 A commercial agent can act solely as the commercial link between the vendor and the purchaser. Moreover, it can even have power of attorney to conclude the contract with a third party. 50 Forbrugerombudsmanden som mandatar for Martin Windfeld Velin v Den Danske Rejsegruppe filial af Svenska Resegruppen AB U.2016.1062 Ø. 51 The ruling of the Danish Eastern Regional Court (reference in the Danish Weekly Law Journal U.2016.1062OE) is in line with the ruling by European Court of Justice in C-149/15 Wathelet.

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