Tourism Law in Europe

140 TOURISM LAW IN EUROPE Therefore, it is clear in this case that the place of residence is the performance debtor, and that this role does not fall to the intermediary platform, Booking.com. It is also clear that the place of residence must be regarded as the consumer’s contracting party, since the contract makes it evident that Booking.com is purely an intermediary platform and that the consumer is contracting directly with the place of residence. Though not directly determined by the court, we must nevertheless regard it as vital that the contractual criteria regarding adoption, clarity and clearness are met. In this regard, the court assumes that the applicant, as a consumer, should have understood that the place of accommodation constitutes a party to the agreement, not Booking.com. Thus, the Western Regional Court, just like the Eastern Regional Court in the GoLeif judgment, developed a functional definition of what can be expected of a consumer in terms of linguistically decoding the contract and its related legal implications. In contrast with the GoLeif judgment, the cumulative requirements for the adoption of a valid intermediary reservation were met in the Booking.com case because of the contract conclusion process and the existence of informative, plain language. Consequently, it was easier in this instance for the consumer to correctly decode his legal position and the implications of the respective roles and obligations of the performance debtor and the intermediary platform. Regarding the validity of intermediary reservations, a central feature of the two judgments is that an assessment of the consumer, in his role as the agreement reader, is included. As a result, notions about what qualities a composite consumer “figure” might possess substantially affect the demands that can be made to the consumer when contracting with a trader54. In EU law, a consumer concept denoted as “the average consumer” has been developed, and this concept has been applied in cases such as Gut Springenheide55. Accordingly, the average consumer is defined as a reasonably well-informed and reasonably observant and circumspect consumer — an assessment that is reached without ordering an expert report or commissioning a consumer research poll56. Therefore, so far the precise meaning of the concept has not been outlined by the European Court of Justice, but it objectifies the notion of the average consumer. Consequently, it can be argued that the average consumer 54 In the judgment published in the Danish Weekly Law Reports U.2018.1374 S, the principle was established that between two professional parties there is no enhanced requirement to conclude an agent disclaimer. 55 Case C-210/96 Gut Springenheide GmbH and Rudolf Tusky v Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung (1998) and references to case law in paragraph 30. See for instance C126/91 (Yves Rocher) and C-315/92 (Clinique). 56 Ibid, paragraph 31.

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