5th IFTTA Europe Workshop Rostock, April 2012

LOSS OF HOLIDAY ENJOYMENT IN POLISH LAW

Anna Koronkiewicz-Wiórek (University of Wrocław, Poland)

Presentation prepared within realization of a supervisor’s research project No. N N110 056936

(Prezentacja przygotowana w ramach realizacji projektu badawczego promotorskiego Nr N N110 056936)

I. POLISH SITUATION ON COMPENSATION FOR LOSS OF HOLIDAY ENJOYMENT

- INTRODUCTION

• Directive 90/314 (PTD) was implemented in Poland in the Act on Tourist Services of 29 August 1997 (for its unified text see: Journal of Laws 2004, No. 223, item 2268), which came into force on 1 July 1998 and has been amended several times in order to adjust Polish law to the PTD;

• In matters not regulated in the Act provisions of the Polish Civil Code (CC) shall apply.

- Neither the Act, nor the CC contains the provision clearly providing for compensation for damage in the form of loss of holiday enjoyment.

Art. 11a of the Act corresponds to the art. 5 PTD and is its “carbon copy” in the analyzing issue, whereas the possibility of redressing a non-material damage (compensation of moral injury – “zadośćuczynienie za krzywdę”) is limited in the light of CC.

COMPENSATION FOR NON-MATERIAL DAMAGE (moral damage; non-pecuniary damage)

IN POLISH LAW

According to the dominant view of the civil law doctrine and jurisdiction, compensation for non-material damage can be claimed only in cases indicated in the law, and in consequence:

- only within tortious liability (as provisions relating to the compensation of moral injury are contained in the part of the CC which concerns torts, and there is no clear statutory provision which permits such compensation within contractual liability) and

- only for non-material damage related – directly or indirectly – to the infringement of personal rights (personal interests).

Relevant provisions of the Polish CC:

• Art. 23 CC: „Personal interests of a human being, such as in particular health, freedom, dignity, freedom of conscience, surname or pseudonym, image, confidentiality of correspondence, inviolability of home as well as scientific, artistic, inventive and reasoning activities shall be protected by the civil law regardless of the protection provided for by other provisions.”

• Art. 24 CC:„§ 1. A person whose personal interests are jeopardized by another person’s action may demand that the action be abandoned, unless it is not illegal. In the case of actual violation, he may also demand that the person who commited the violation perform acts necessary to remove its consequences, in particular that the latter make a statement of a relevant content and in a relevant form. On the basis of the principles provided for by the Code he may also demand pecuniary compensation [„zadośćuczynienia pieniężnego”] or a payment of an adequate amount of money for a specified community purpose.§ 2. If, as a result of a of personal interests damage to the property was inflicted, the injured party may demand it to be redressed on the basis of general principles.§ 3. The above provisions shall not prejudice the entitlements provided for by other provisions, in particular by copyright law and by patent law.”

• Art. 445 CC:„§ 1. In the case provided for in the preceding article [i.e. in the case of a bodily harm or a health disorder - see: art. 444 § 1 CC], a court of law may grant to the injured party a relevant amount on account of pecuniary compensation for the wrong suffered [„(…) tytułem zadośćuczynienia pieniężnego za doznaną krzywdę”].

§ 2. The above provision shall also apply in the case of false imprisonment or in the case of inducing somebody by deceit, violence or abuse of a dependency relation to submit to an indecent act.§ 3. A claim for compensation shall devolve on heirs only where it has been acknowledged in writing or where statements of claim were instituted during the life of the injured party.”

• Art. 446 CC:„§ 1. If the injured party died due to bodily harm or health disorder, the party obliged to redress the injury shall reimburse the treatment and the funeral expenditure to the person who incurred them.§ 2 - §3 […]

§ 4. A court of law may also grant a relevant amount to the closest family members of the deceased on account of pecuniary compensation for the wrong suffered [„(…) tytułem zadośćuczynienia pieniężnego za doznaną krzywdę”].”

• Art. 448 CC:

„In the case of violation of a personal interest, a court of law may

grant to the person whose personal interest has been violated an

appropriate amount on account of pecuniary compensation for the

wrong suffered [„(…) tytułem zadośćuczynienia pieniężnego za doznaną

krzywdę”] or following his demand it may award an appropriate pecuniary

amount for a community purpose indicated by him, regardless of other means

required to remove the effects of the violation. The provision of article 445 §3

shall apply.”

EFFECTS FOR THE LOSS OF HOLIDAY ENJOYMENT

As a result, Polish courts initially dismissed claims for compensation for loss of holiday enjoyment, and this issue was very rarely discussed in the doctrine and in jurisdiction.

The turning point is the first decision of the Polish Supreme Court in this issue, i.e. the judgment of 19th November 2010 (III CZP 79/10), in which this court stated – taking into account the ECJ judgment in the Leitner case – that the loss of holiday enjoyment is a non-material damage which can be compensated on the basis of art. 11 a of the Polish Tourist Services Act.

II. COMPENSATION FOR LOSS OF HOLIDAY ENJOYMENT BEFORE THE SUPREME COURT JUDGMENT OF 19TH NOVEMBER

2010, III CZP 79/10

uncertain situation and decided in various ways in the doctrine and in jurisdiction

1) BEFORE the ECJ judgment in THE LEITNER case this issue was very rarely discussed in the Polish doctrine and jurisdiction

• COURTS dismissed such claims due to the lack of legal basis (e.g., Supreme Court judgment of 25th February 1986, III CZP 2/86);

• the approach of the DOCTRINE varied depending on accepted legal nature of this damage:» given that it was non-material loss, it could not be compensated according to the Polish law;» there was also a (minority) view that this was a material damage.

2) AFTER the ECJ judgment in THE LEITNER case:

The ECJ judgment in the Leitner case admittedly caused an increased interest in the issue in question, but it did not remove all doubts related to it and the divergences in jurisdiction. Some courts granted compensation for this kind of damage and some did not; but did not always refer to the ECJ judgment.

After the Leitner – cont.:

• The position of Polish DOCTRINE [lack of uniformity!]:

» indicating the problem of improper implementation of the PTD and calling for an interpretation of the national law in compliance with the Directive;» lack of the widely accepted “definition” and uniform name for this kind of loss;» lack of uniformity to the legal nature of this loss (non-material or material damage) and to its legal basis (the non-material classification was predominant);» frequent demands for an amendment to Polish law in order to clearly regulate by law this issue.

“A NON-MATERIAL APPROACH” – legal basis:» art. 471 CC (interpretation in compliance with the Directive);» art. 11a or 16a of the Act (interpretation in compliance with the Directive);» art. 448 or 445 CC; » art. 56 CC.

“A MATERIAL APPROACH” – using the art 322 of the Polish Civil Procedure Code when awarding a compensation.

• Polish JURISDICTION (except the Supreme Court):

» similar to the doctrine – lack of uniformity (to the legal nature and legal basis; and lack of agreement on issue of the possibility of compensation for this loss de lege lata)

Relevant provisions:

• Art. 471 CC:„The debtor shall be obliged to redress the damage arising from non-performance or from improper performance of an obligation, unless the non-performance or the improper performance are an outcome of circumstances which the debtor shall not be liable for.”

• Art. 445 CC:„§ 1. In the case provided for in the preceding article [i.e. in the case of a bodily harm or a health disorder - see: art. 444 § 1 CC], a court of law may grant to the injured party a relevant amount on account of pecuniary compensation for the wrong suffered [„(…) tytułem zadośćuczynienia pieniężnego za doznaną krzywdę”].§ 2. The above provision shall also apply in the case of false imprisonment or in the case of inducing somebody by deceit, violence or abuse of a dependency relation to submit to an indecent act.§ 3. […].”

• Art. 448 CC:„In the case of violation of a personal interest, a court of law may grant to the person whose personal interest has been violated an appropriate amount on account of pecuniary compensation for the wrong suffered [„(…) tytułem zadośćuczynienia pieniężnego za doznaną krzywdę”] or following his demand it may award an appropriate pecuniary amount for a community purpose indicated by him, regardless of other means required to remove the effects of the violation. The provision of article 445 §3 shall apply.”

• Art. 56 CC:„A juridical act shall not only produce the consequences expressed in it but also those which result from statute, the principles of community coexistence and the established customs.”

Art. 11a of the Tourist Services Act (which is based on the art. 5 PTD)

“1.The tourism organiser is liable for the failure to perform or the improper

performance of the contract for the provision of tourist services unless the failure to

perform or the improper performance is caused exclusively by:

1) an act or an omission of the customer;

2) an act or an omission of third parties who did not participate in the performance

of services provided for in the contract, if these acts or omissions could have not been

foreseen and avoided; or

3) force majeure”.

» This liability is more stringent than that in the art. 5 PTD.

III. SUPREME COURT JUDGMENT OF 19TH NOVEMBER 2010, III CZP 79/10

“Art. 11a section 1 of the Act on Tourist Services of 29 August 1997 (…) can be a basis of liability of the tourism organiser for non-material damage to the customer in the form of so-called wasted holiday”.

[this is a reply of the Supreme Court to the legal question of one of the Polish courts of second instance; the question was: “Whether a travel agent is liable for non-material damage manifesting itself in the “waste of holiday” on the basis of the art. 11a section 1 of the Act on Tourist Services of 29 August 1997 (…), or on the basis of the art. 448 CC in conjunction with art. 24 §1 CC?”]

Comments:

• Supreme Court (SC) prefers a term “wasted holiday” (which, as SC states, is the most frequently used term in the doctrine and in jurisdiction);

• according to the SC:- claims for compensation for such damage are very difficult in judicial practice;- a term “wasted holiday” is “indeed a semantic abbreviation that conveys concisely the essence of a damage which is the loss of pleasant experiences expected with the conclusion of the contract, relating usually to travel, relaxation and rest.”;

- this is always a non-material damage, related to the ex contractu liability; it concerns a package („tourist event”);

- its legal basis is art. 11a of the Tourist Services Act – the SC arguments:

» art. 11a is a lex specialis provision to the art. 471 CC; it is a “separate, autonomous basis of contractual liability, rooted in regulation of the EU law”;

» axiological motives and arguments from EU law and from ECJ case law; interpretation of the Act in compliance with the Directive (art. 11a corresponds to the art. 5 PTD, so it has to be

interpreted in the same way – “such interpretation, which is at the same time integrating in its character, allows also the conclusion, that the solution in domestic law is in accordance with the Directive. (…)”;

» „the interpretation of the art. 11a (…) – that allows to award redress by virtue of the ex contractu liability – corresponds also to the modern tendencies of the civil law

development. (…)” (PECL, UNIDROIT, work of the Polish Civil Law Codification Commission);

SC analysed and finally negated the other legal bases suggested in the doctrine, including a conception of the personal right in the form of “right to the undisturbed rest” - according to the SC:

» protection of the personal rights is an exception and it shall be used with caution, without the tendencies to the artificial extension of their opened catalogue;

» “It is generally accepted in jurisdiction and in the doctrine, that personal rights arise from these non-material values, which are strictly related to person, including his physical

and mental integrity or being a manifestation of his creative activity; they gather a unique, allowing the self-realization, personality of a human, his dignity and the position among other people. The personal right is the right which is inherently combined with the essence of the humanity and with the human nature, not depending on his will, constant, which can be crystallized and objectivized. (…)”.

» It is not allowed to construct a right of an undisturbed rest as a personal right (personal interest). “Besides, it has to be remembered that each personal right incorporates two elements – protected value and the right to demand that other people respect it. Quiet, undisturbed rest during the package holiday does not correspond to these prerequisites;

it is the ordinary manifestation of the human behavior, a fulfillment of person’s - most often temporary - need, moreover not felt by everybody (…)”;

• SC uses a term „redress” („zadośćuczynienie”) for wasted holiday and does not refer to its understanding in Polish civil law;

• SC did not deal in this judgment with the issue of detailed prerequisites of this claim and criteria for the assessment of compensation for the loss of holiday enjoyment.

 IV. COMPENSATION FOR LOSS OF HOLIDAY ENJOYMENT AFTER THE

SUPREME COURT JUDGMENT OF 19TH NOVEMBER 2010, III CZP 79/10

- this judgment is cited by plaintiffs and by courts adjudicating in cases

which concern wasted holiday (see especially a judgment of the Supreme

Court of 24th March 2011, I CSK 372/10) and generally approved by the

doctrine;

- the issue of detailed prerequisites of this claim and criteria for the

assessment of compensation for the loss of holiday enjoyment remains open –

the Supreme Court has not yet dealt with it, and the decisions of the courts of lower

instances are not uniform in this respect, whereas statements of the doctrine are very

rare;

 

V. DE LEGE FERENDA COMMENTS

THE APPROPRIATENESS (NECESSITY) OF A LEGISLATIVE AMENDMENT

to the Polish law, concerning loss of holiday enjoyment – ? 

• prerequisites, criteria for the assessment of compensation for the

wasted holiday [German, Austrian or English model?];

• location [CC or the Tourist Services Act?];

• the impact on the Polish civil law.

THANK YOU VERY MUCH

FOR YOUR ATTENTION!!!