Contrary to settled jurisdiction of Commercial Court Vienna, Austrian Supreme Court (OGH) in a recently published decision held that compensation for loss of holiday enjoyment would not depend on a certain percentage of price reduction granted for malperformance. Commercial Court Vienna had usually only granted compensation for loss of holiday enjoyment in cases were malperformance of the package tour contract entitled to a price reduction of at least 50 percent. In two previous decisions Supreme Court had not referred to a certain percentage of price reduction but argued that compensation for loss of holiday enjoyment could only be granted if a (not to low) treshold of relevant malperfomance was exceeded.The new decision now emphasizes the different purposes of compensation for loss of holiday enjoyment on the one hand and price reduction for malperformance on the other hand and favours a position that compensation for loss of holiday enjoyment was only excluded in bagatelle cases. A treshold of entitlement to 50 percent price reduction would limit compensation for loss of holiday enjoyment to cases of massive annoyance which would not be in line with art. 5 of the European Package Travel Directive.Full text of OGH decision 6 Ob 231/08a of Sep. 18, 2009 available in German here>>.
