To: Marcus
From: Trainee Legal Advisor
Date: 27 October 2025
Re: Advice on a potential claim against the Austrian state for damages
1. Introduction
This advice addresses your query regarding a potential claim for financial compensation against the Republic of Austria. You have incurred expenses in repatriating yourself and your girlfriend, Sofia, from Fuerteventura following the insolvency of your package holiday provider, ‘Ab in der Urlaub’, in 2023. The issue is whether the Austrian state can be held liable in damages for its failure to correctly and punctually implement Directive (EU) 2019/1234 on Package Travel (the ‘Directive’), which was intended to protect consumers like you in such situations.
The advice will outline the legal principle of state liability under European Union (EU) law. It will then apply the legal test established by the Court of Justice of the European Union (CJEU) to your circumstances to determine whether you have a viable claim. The conclusion will provide a summary of your legal position and suggest the appropriate next steps.
2. The Principle of State Liability in EU Law
The principle of state liability is a fundamental concept in EU law, though it is not explicitly mentioned in the Treaties. It was developed by the CJEU to ensure that EU law is effective and that individuals are protected when their EU rights are breached by a Member State. If a Member State fails to comply with its obligations under EU law, and this failure causes damage to an individual, that individual may be able to sue the state itself for compensation in their national courts.
The principle was first established in the landmark case of *Francovich & Bonifaci v Italian Republic* (Joined Cases C-6/90 and C-9/90). In that case, Italy had failed to implement a directive that was designed to protect employees’ wages if their employer became insolvent. The CJEU ruled that since the employees had suffered a financial loss as a direct result of Italy’s failure, they were entitled to compensation from the Italian state. The Court reasoned that the full effectiveness of EU law would be undermined if individuals could not obtain redress when their rights were infringed by a Member State’s breach (para 35).
This principle was later refined and expanded in the case of *Brasserie du Pêcheur and Factortame III* (Joined Cases C-46/93 and C-48/93). The CJEU clarified that state liability could arise from any breach of EU law by a Member State, not just the failure to transpose a directive. It also established a set of conditions that must be met for a claim to succeed.
For you to successfully claim damages from the Austrian state, you must satisfy the three conditions set out in *Brasserie du Pêcheur*. These are:
1. The rule of EU law that was breached must be intended to confer rights on individuals.
2. The breach must be ‘sufficiently serious’.
3. There must be a direct causal link between the Member State’s breach and the damage you have suffered.
The following sections will analyse each of these conditions in the context of your situation.
3. Application to Marcus’s Case
We must now apply this three-part test to the facts of your case to assess the strength of a potential claim against Austria.
3.1. Condition One: The Rule of Law was Intended to Confer Rights
The first condition requires that the provision of EU law that has been breached was intended to grant rights to individuals. In your case, the relevant provision is Article 6 of the fictitious Directive (EU) 2019/1234.
Article 6 states: ‘The organiser and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency’.
The wording of this article clearly identifies the beneficiary of the protection: “the consumer”. The right conferred is the right to have security in place that guarantees a refund and, crucially for your situation, repatriation if the travel organiser becomes insolvent. The purpose of the provision is to protect the financial interests of individual travellers like yourself and Sofia.
Therefore, it is highly likely that a national court would conclude that Article 6 of the Directive is intended to confer rights on individuals. This condition should be straightforward to satisfy.
3.2. Condition Two: The Breach was Sufficiently Serious
The second condition is that the breach of EU law by the Member State must be ‘sufficiently serious’. This is often the most difficult condition to prove. According to the CJEU in *Brasserie du Pêcheur*, the key test is whether the Member State ‘manifestly and gravely disregarded the limits on its discretion’ (para 55).
In your case, Austria appears to have breached its EU law obligations in two ways:
1. **Failure to transpose the Directive on time (non-transposition):** The deadline for transposing the Directive was 1 August 2022. However, the Austrian Package Travel Act, which was meant to implement it, only came into effect on 28 April 2024. Your holiday and the insolvency of the travel company occurred in 2023. At that time, Austria was in breach of its obligation to have implemented the Directive.
The CJEU has given clear guidance on this type of breach. In *Dillenkofer v Germany* (Joined Cases C-178/94 and others), the Court held that a complete failure by a Member State to transpose a directive within the prescribed time limit is automatically considered a sufficiently serious breach (para 26). The reasoning is that in such a situation, the Member State has no discretion; it has a clear obligation to act, and it has failed to do so entirely. As Austria had not put any measures in place to implement the Directive by the time you suffered your loss, its failure constitutes a clear-cut and sufficiently serious breach.
2. **Failure to transpose the Directive correctly (incorrect transposition):** Even when the Austrian Act did come into force, it was defective. The facts state that the Act provides for a refund of the travel price but “does not contain provisions of reimbursement of necessary expenditure incurred by the traveller in respect of his or her repatriation”. This is in direct conflict with Article 6 of the Directive, which explicitly requires security for both the refund of money *and* for repatriation.
This incorrect transposition would also likely be considered a sufficiently serious breach. When assessing this, a court would consider factors such as the clarity and precision of the rule breached (*Brasserie du Pêcheur*, para 56). Article 6 is very clear in requiring cover for repatriation costs. By omitting this element, the Austrian legislature has manifestly disregarded the clear wording of the Directive. There appears to be little room for interpretation or discretion that could justify this omission.
For your claim, the most relevant breach is the failure to transpose the Directive on time, as this was the legal situation when you suffered your loss in 2023. This failure is automatically considered sufficiently serious, making your position on this condition very strong.
3.3. Condition Three: A Direct Causal Link
The final condition is that there must be a direct causal link between the sufficiently serious breach by the state and the damage you have suffered. This means you must show that your financial loss was a direct consequence of Austria’s failure to implement the Directive correctly and on time.
The damage you have suffered is the cost of arranging and paying for your own return travel from Fuerteventura after ‘Ab in der Urlaub’ became insolvent.
The breach is Austria’s failure to have a legal framework in place in 2023 that would ensure security was available for these repatriation costs, as required by the Directive.
The causal link appears to be direct. Had Austria complied with its EU law obligations and transposed the Directive by the 1 August 2022 deadline, a scheme would have been in place to cover your repatriation costs. Because no such scheme existed due to Austria’s breach, you were forced to bear the costs yourself. But for Austria’s failure to act, you would not have suffered this specific financial loss. Therefore, it is very likely that a direct causal link can be established.
4. Conclusion and Next Steps
Based on the application of the three conditions for state liability, it is my advice that you have a strong legal basis to bring a claim for damages against the Republic of Austria.
* The Directive was clearly intended to grant you, as a consumer, a right to protection for repatriation costs.
* Austria’s failure to implement the Directive by the deadline is a sufficiently serious breach of EU law.
* There is a direct causal link between this breach and the financial loss you incurred in paying for your return journey.
You would need to bring this action before an Austrian national court. It is the national courts that are responsible for hearing such claims and applying the principles of EU law established by the CJEU. If your claim is successful, the Austrian court would be required to award you damages to compensate you for the loss you have suffered. The amount of compensation should be equivalent to the actual expenses you incurred for your repatriation. You should ensure you have kept all receipts and evidence of these costs.
I would recommend that you now consult with a lawyer practising in Austria to commence legal proceedings against the state. They will be able to guide you through the specific procedural requirements of the Austrian legal system.
***
**Disclaimer:** This advice is based on the facts provided and the general principles of EU law. It is intended for informational purposes only and does not constitute a formal legal opinion. You should seek advice from a qualified lawyer in the relevant jurisdiction before taking any legal action.
References
* Joined Cases C-6/90 and C-9/90, *Francovich & Bonifaci v Italian Republic* [1991] ECR I-5357.
* Joined Cases C-46/93 and C-48/93, *Brasserie du Pêcheur SA v Germany and R v Secretary of State for Transport, ex parte Factortame Ltd and Others* [1996] ECR I-1029.
* Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94, *Dillenkofer and Others v Federal Republic of Germany* [1996] ECR I-4845.
* Craig, P. and de Búrca, G. (2020) *EU Law: Text, Cases, and Materials*. 7th edn. Oxford: Oxford University Press.
* Chalmers, D., Davies, G. and Monti, G. (2019) *European Union Law: Text and Materials*. 4th edn. Cambridge: Cambridge University Press.
