The CJEU has this morning handed down judgment in the long running tour operator claim X v Kuoni case (full judgment here) and, as expected, has followed the opinion of AG Szpuner, delivered on 10 November 2020, which was discussed in our earlier blog post here. The case turns on interpreting the nature of the tour operator’s liability to the consumer under the relevant Directive for the performance of the holiday contract by its suppliers (such as hotels).
On reference from the UK Supreme Court, the CJEU has ruled that an employee of the supplier cannot be regarded as a supplier of services under the holiday contract. However where such an employee fails or improperly performs obligations arising from the contract, the travel organiser may be liable to the consumer (ie Kuoni may be liable to X, but whether or not it is will be a fact-specific issue).
The CJEU further found that the organiser cannot rely on the defence in the Directive that the failure or improper performance of the contract was due to an event which the other party to the contract, or the supplier of services, even with all due care, could not foresee or forestall. ‘Event’ must be interpreted as a fact or incident which does not fall within the ‘sphere of control’ of the organiser or supplier of services. The CJEU found that acts or omissions of an employee (the underlying claim relates to X being sexually assaulted by an employee) of the supplier of services in the performance of the contractual obligations and ancillary services do fall within that sphere of control and therefore the defence does not apply.
It appears Kuoni applied for the oral part of the CJEU’s procedure to be reopened following delivery of the Advocate General’s opinion, in relation to the interpretation of the word ‘event’. No doubt this was due to AG Szpuner determining that the assault did not constitute an ‘event’ for the purposes of the defence available in the Directive (and the UK regulations), meaning that the defence was not available to Kuoni. However the CJEU concluded that all relevant factors had been considered and the parties had had ample opportunity to submit observations, including their views on the interpretation of ‘event’, therefore there was no need to reopen the oral part of the procedure.
The case will be referred back to the Supreme Court and they will consider the Judgment of the CJEU and apply it to the particular facts of this claim. The Supreme Court will need to determine whether, on the facts, the employee was performing ‘an obligation arising from the package travel contract’ or an ‘ancillary service’ to the contract.
Although the Supreme Court could determine that the employee was no longer performing his obligations (or any ancillary services) under the package travel contract at the point he lured X into the engineering room and assaulted her, we suggest it appears likely they would find he was performing a contractual obligation or ancillary service – from X’s perspective at least, albeit that he used his role to carry out a dreadful assault – and if so the claim against Kuoni would succeed.
Another possible permutation is that the parties to the case are able to move forward from the CJEU’s decision today and reach a settlement without the need for another hearing. While we can see that such an outcome would hopefully bring some much needed and long awaited closure for X, predicting the ultimate conclusion of this claim is difficult and it is entirely possible that today’s decision is not the last judicial word on it.