Evaluation of the customer's contractual obligation to inquire about flight schedule updates covered by a travel contract : commentary to the Supreme Court judgment from 25 August 2016, V CNP 61/15 (critical)

Abstract

The article analyzes a ruling of the Polish Supreme Court concerning responsibility for notification about flight schedule changes. The Polish Supreme Court first held that the court should examine ex officio whether individual provisions of the travel contract are abusive and hence not binding on the customer. Second, the Polish Tourist Services Act and Article 6(1) of the Directive on Unfair Terms in Consumer Contracts requires a court to assess the abusiveness of a contractual provision, which obligates the customer to ascertain a flight's departure time and exempts a tour operator from an obligation to inform the customer about a change in departure time of which the tour operator was aware. This commentary indicates that there are serious doubts about how the contract underlying the dispute should be classified. Arguments this is not a Package Travel Contract are reviewed, which raises doubts whether application of the XXX Act was appropriate. Even assuming that the contract in question meets the definition of a Package Travel Contract, under Polish Supreme Court case law, the disputed clauses should be declared void, which excludes their classification as abusive