Tourism Law in Europe

standard, not least because in some countries hoteliers owe a strict duty to keep guests safe, and so a standard was not thought to be necessary. In others, particularly those jurisdictions governed by repressive regimes and with government-owned hotels, no expert could be found brave enough to opine that a hotel had breached applicable standards. Cuba, a popular destination with English tourists, created particular difficulties, because lawyers with American connections could not contract with Cuban experts due to the sanctions imposed by the American government. Further difficulties would then arise due to the fact that hotels in Cuba are at least partially government- owned. This position may have changed following the recent decision of Marcus Smith J in the High Court in TUI v Morgan [2020] 6WLUK 632 , in which the judge appears to have stated that local standards may be deduced in the absence of any evidence as to what they are. This decision is currently being appealed by TUI, however, and most commentators think it is almost certainly wrong, since it does not appear consistent with binding caselaw determined by the Court of Appeal. Nevertheless, the judgment on appeal with provide further guidance in what is a contentious and difficult area of legislative interpretation. The courts of England and Wales have also generated caselaw on the interpretation of the defences to Regulation 15, in the form of a reference to the Court of Justice of the European Union relating to the 1992 Regulations implementing the old Directive. The decision of the CJEU is nevertheless of importance as an aid to the interpretation of the new Directive and the various Member States’ domestic legislation implementing it. The CJEU handed down its much anticipated judgment in X v Kuoni Travel Ltd (Case C- 578-19) on 14 th March 2021. As expected, the Court concurred with the opinion of Advocate General Szpunar delivered in November 2020, and dealt a significant blow to tour operators in limiting the circumstances in which they are able to avoid liability for the acts and omissions of employees of their suppliers. The Court found that an employee of a supplier of services ‘cannot himself be classified as a supplier of services, within the meaning of Article 5 of Directive 90/314 as he has not concluded any agreement with the package travel organiser but merely performs work on behalf of a supplier of services’ . Nevertheless, an organiser may be liable for the acts and