The plaintiff (a lawyer) initially had sued a tour operator for mal-performance of a package travel contract. The claim had been dismissed by all instances as courts had held that the plaintiff had booked accomodation in a Dubai city hotel with half board and a shuttle service to the beach – and had exactly got what he had booked. It had to be regarded obvious that a city hotel could not offer the same amenities with regard to duration and flexibility of staying at the beach like a hotel directly situated there. It also could not be regarded a mal-perfomance that beach hotels might be more adapted to European tourists with regard to choice and seasoning of dishes.The Civil Supreme Court (OGH) had dismissed the plaintiff’s appeal because of a lack of material legal issues involved. The decisions of the lower courts at least had to be regarded reasonable. The hotel description provided by the tour organiser had not been misleading and – given the short-term booking by the plaintiff – he could not have expected further information. The Supreme Court therefore had seen no reason for a preliminary ruling by the ECJ as suggested within the statement of appeal.With another law suit before the constitutional court, the plaintiff then sought for state liability of Austria on the ground that the Civil Supreme Court had neglected ECJ jurisprudence and failed to move for a preliminary judgment by the ECJ which would have been in favour of the plaintiff. It would be inconceivable and against the purposes of the Package Travel Directive if the consumer had to accept a useless package.However, this new suit also remained unsuccessful: the Constitutional Court (VfGH) dismissed the claim because the plaintiff had failed to explain why the alledged false application of the Package Travel Directive should have been obvious. As the statement of claim had not even suggested any obvious and thus qualified violation of EU law, there was no sufficient foundation for state liability.German text of judgement A 4/10 of the Austrian Constitutional Court (VfGH) of May 2, 2011 available here>>.
