Collective Commentary about the New Package Travel Directive

ARTICLE 6 | JOSEP MARIA BECH SERRAT 231 In some EU Consumer Law Directives, one sanction for failing to provide pre-contractual information was to extend the period during which a consumer is entitled to exercise the right of withdrawal, where available 15 . However, in the field of travel services the withdrawal right is aimed at addressing any impediment for the traveller arising after the booking confirmation and before performance and, therefore, the legislation was addressed at restricting the period for exercising the withdrawal right from a package travel contract to “any time before the start of the package” 16 . For the same reason, the new Package Travel Directive does not contain a specific rule for non-fulfilment of the information on the right of withdrawal and the omission will have a big impact in the field 17 . The only sanction was provided in Art. 6(2), in virtue of which the traveller will not be obliged to pay additional fees, charges or other costs where the organiser and, where applicable, the retailer, has not complied with the information requirements as referred to in point (c) of the first subparagraph of Art. 5(1) 18 . The rule differs from Art. 22 CRD when providing that, before the consumer is bound by the contract or offer, the trader must seek the express consent of the consumer to any extra payment in addition to the remuneration agreed upon for the trader’s main contractual obligation. Moreover, if the trader has not obtained the consumer’s express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment, the consumer shall be entitled to reimbursement of this payment. Paradoxically, the new legislation establishes that, before the start of the package, the organiser may unilaterally change Package travel contract terms when: (a) the organiser has reserved that right in the contract; (b) the change is insignificant; and (c) the organiser informs the traveller of the change in a clear, 15 Art. 6 of the old Distance Selling Directive. See also Art. 10 CDR, a directive where this particular sanction was limited to a failure to inform a consumer about the existence of the right of withdrawal. In the same line, Art. II.–3:109 (1) of the Draft Common Frame of Reference (DCFR) (“Remedies for breach of information duties”) establishes that “If a business has a duty under II.–3:103 (Duty to provide information when concluding contract with a consumer who is at a particular disadvantage) to provide information to a consumer before the conclusion of a contract from which the consumer has the right to withdraw, the withdrawal period does not commence until all this information has been provided. Regardless of this, the right of withdrawal lapses after one year from the time of the conclusion of the contract”. 16 Art. 11(1) of the new PTD. 17 Compare with Art. 10(1) CRD, where the withdrawal period shall expire 12 months from the end of the initial withdrawal period, giving the consumer more time to find out about his rights. 18 Compare with Arts. 6(1)(e) and (i) and Art. 6(6) CRD, regarding information requirements on additional charges or other costs.