Collective Commentary about the New Package Travel Directive
Article 8 Burden of proof As regards compliance with the information requirements laid down in this Chapter, the burden of proof shall be on the trader. Josep Maria Bech Serrat 1 Art. 8 of the new PackageTravel Directive establishes that, as regards compliance with the information requirements laid down in Chapter II, the burden of proof shall be on the trader. The burden to prove that the provided information was false, or that the information was not provided at all in the given circumstances, may be too great a procedural hurdle to jump for the traveller. This problem can be addressed by shifting the burden of proof as is done in Art. 8. The provision follows the same scheme as the Consumer Rights Directive 2 , so that the organiser or retailer has to show that the information was provided, and not the traveller that has to show that it was not. Enforcing a remedy on the basis of defective consent also requires that it can be demonstrated what information was (or was not) provided prior to the conclusion of the contract. The burden of proof of Art. 8 is called to play an important role in this respect. 1 University of Girona, Spain. 2 This directive contains a specific provision on the burden of proof for showing that the information duties under Art. 6 have been complied with. This burden falls on the trader, rather than on the consumer: See Art. 6(9) CRD. Regarding the consumer, Martien Schaub, “How to Make the Best of Mandatory Information Requirements in Consumer Law”, European Review of Private Law , 1-2017, 25-44, p. 32.