AUSTRIA | MICHAEL WUKOSCHITZ 61 contractual limitation of the organiser’s liability would be pointless if it was not even applicable to damages caused by slight negligence. This legal situation was the basis for a cease and desist claim filed against a package organiser by an Association for Fair Competition, as a clause in the organiser’s general terms and conditions read: “As far as the organiser is responsible for persons other than his employees, he shall only be liable – except in cases of personal injury – if he cannot prove that these persons acted neither intentionally nor grossly negligent”. By limiting the liability of the organiser to gross negligence and intent, this clause clearly infringed sec. 12(4) of the Austrian Package Travel Act, therefore the motion for injunction was based on the allegations that the clause was not only unlawful but also deceptive, because it was likely to mislead travellers about their rights against the organiser. In the course of the proceedings, the respective organiser amended his terms and conditions and replaced the disputed clause with a new clause providing for a limitation of the organiser’s liability for “excusable mistakes up to negligence”. This new clause still infringed Austrian and European law, so the claim for injunction was therefore upheld by the plaintiff - and granted by the Regional Court of Linz33. However, the organiser did not just file an appeal against this judgement but also tried to challenge the Austrian law before the Constitutional Court, alleging that it was infringing the principle of equality, the freedom of economic activity and the right to property. By decision of 8 June, 202034, the Constitutional Court dismissed the motion of the organiser and held that the court had no objections to a rule prohibiting package organisers from limiting in advance the payable compensation in the package contract. The differences in factual circumstances would justify different liability regimes between package organisers, on the one hand, and suppliers of individual travel services, on the other. Hence, there was no violation of the fundamental rights invoked by the organiser. However, this did not cause the latter to give up: he rather suggested lodging a request for a preliminary ruling before the CJEU. The organiser argued that, due to the full harmonisation principle of the PTD, the Austrian legislator did not have a scope for implementation. As fault was not a prerequisite for liability under the PTD, a total prohibition of any limitation of liability, as per sec. 12(4) of the Austrian Package Travel Act, would be contrary to the Directive. 33 LG Linz 1.10.2019, 4 Cg 80/19f. 34 VfGH 8.6.2020, G 265/2019-16.
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