“Extraordinary” Legislative Shortcomings in the New PTD – Michael Wukoschitz, Austria, President emeritus of IFTTA.
4.4) Article 21
According to Article 21 of the PTD 2015, a trader shall be liable for any errors due to technical defects in the booking system which are attributable to him and, where the trader has agreed to arrange the booking of a package or of travel services which are part of linked travel arrangements, for the errors made during the booking process – but shall not be liable for booking errors which are attributable to the traveller or which are caused by unavoidable and extraordinary circumstances.
If we analyse the wording of Article 21, it turns out to be another quite confusing provision:
- the first sentence states that liability for errors due to technical defects in the booking system only arises if these defects are “attributable to the trader”; nevertheless, the second sentence provides for an exemption from liability if the error was caused by “unavoidable and extraordinary circumstances”.
Could anyone think of any technical defect which was attributable to the trader – but still caused by unavoidable and extraordinary circumstances (regardless of whether interpreted according to their definition in Article 3 para 12 or according to the CJEU interpretation of “extraordinary circumstances” in air passenger rights cases)?
Even if we assume the exemption would only apply to errors made during the booking process which are not due to technical defects it still remains unclear how they ever could be caused by unavoidable and extraordinary circumstances.
Regardless of the interpretation of the term “unavoidable and extraordinary circumstances”, the use of this term in Article 21 seems pointless as it is more than hard to imagine any case in which the related exemption could apply.
The analysis of the use of only one term in four articles of the PTD 2015 revealed a significant number of legislative shortcomings – simply because the legislator has ignored the importance of a proper definition and a consistent terminology. However, these by far are not the only shortcomings of the new legislation.
The European legislator thus has clearly failed to replace an existing legislation by a better one – at least in terms of legislative technique.
In spite of the obvious shortcomings of the PTD 2015, it is highly unlikely that the legislative bodies of the EU will “burn” it in order to draft a better one – even if some Member States already call for such revision.
Because of the principle of full harmonization laid down in Article 4, there is only little which Member States can improve when implementing the PTD 2015 into their national law. Therefore, it will be for the CJEU to provide practicable solutions for the issues which the legislator has ‘bodged’.