62 TOURISM LAW IN EUROPE Although these arguments seem quite valid, the organiser overlooked that both clauses contain liability limitations for slight negligence and thus violate both the Austrian Package Travel Act and the PTD. The issue of whether the transposition of Article 14(4) PTD into Austrian law was contrary to the Directive was, therefore, not prejudicial and the organiser’s motion and appeal were both dismissed by the Higher Regional Court of Appeal of Linz35. The decision is final. In my view, the cause of the confusion was a fundamental misunderstanding by the Austrian legislator of the liability provisions in the PTD: if the PTD does not make liability conditional on fault, this can only mean that it is independent of fault, and there is no place for a fault requirement in national law. To comply with Article 14(4) PTD, sec. 12(4) of the Package Travel Act has to be amended accordingly. Any exclusion or limitation of liability for slight negligence would still remain unlawful while limitations of liability for damages (other than personal injury) caused without fault would become possible. The moral of the story: good legislation should bring clarity and not confusion36. 4. INSOLVENCY PROTECTION In contrast with other countries37, the Austrian legislator has not implemented the provisions on insolvency insurance for package organisers38 and facilitators of linked travel arrangements39 within the framework of the civil law provisions on the package tour contract, having them as a separate regulation40 on the basis of a respective authorisation in the Trade Regulations Act41. In accordance with the PTD, the insolvency protection has to cover: the refund of all payments made by or on behalf of travellers if the services in question are not performed as a result of the organiser’s insolvency; the repatriation of travellers (insofar as the carriage of persons is included in the package travel contract); 35 OLG Linz 30.7.2020, 1 R 170/19d. 36 Bill Haslam, American politician. 37 Eg Germany: sec. 651r and 651s Civil Code (BGB). 38 Art. 17 PTD. 39 Art. 19 PTD. 40 Package Travel Regulation – Pauschalreiseverordnung (PRV) BGBl II No. 260/2018. 41 Sec. 127 para 1 Trade Regulations Act.
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