Collective Commentary about the New Package Travel Directive

ARTICLE 13 | FRANCESCO MORANDI AND CHIARA TINCANI 321 packages are organised and sold, depending on the various ways in which the professionals operate within the national market, either directly or through retailing agencies or by being present on the European and international scene of online package travel retail. With regard to the responsibility for executing the package travel, the legislator mainly identifies the organiser as the subject required to ensure the entire fulfilment of the traveller’s interest. In fact, the provision for the opening of art. 13 of Directive (EU) 2015/2302 establishes that the organiser “is responsible for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers” (par. 1, comma 1). Upon attributing the risk that originates from the failed or inexact execution of the package travel to the organiser, the law introduces a general principle of imputation of liability for non-fulfilment, intended to be applied uniformly in all the countries of the European Union. This choice is entirely consistent with the declared goal of the legislator to achieve “full harmonization” of the regulations and to favour the creation of an effective “European Union travel space”. This principle, however, does not apply to the retailer, with respect to which Directive (EU) 2015/2302 waives the achievement of the maximum harmonization of rights and obligations deriving from the package travel contract, which was placed as the basis of the legislative intervention. After taking into account the profound differences between the laws of the Member States, the European Parliament and the Council consciously renounce to overcome the legal fragmentation that actually takes place in matters regarding the retailer’s responsibility. Given the Directive’s level of detail and the general objective pursued by the EU legislator, the choice is truly surprising and disappoints the expectations of a significant part of the market operators. Taking into account the fact that, within the commercial relations, the retailer often represents the interface between the traveller and the organiser of the package travel, the lack of harmonization within the European Union regarding the travel agent liability regime represents a significant critical factor. In fact, what follows, as it will be highlighted, is a situation of profound differentiation between various national legal systems, which can significantly compromise the ability of retailers to operate in conditions of equal and effective competitiveness in exercising their economic activities.