Collective Commentary about the New Package Travel Directive

376 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE some confusion with regards to its exact scope, therefore the obligation to provide assistance appeared ultimately quite vague. The provisions set out in the new Directive remedy this shortcoming. The obligation to provide assistance is now defined in a separate article: Article 16 of the Directive. The justification for remodelling such an obligation is indisputably linked to consumer protection. The knowledge by the organiser or retailer of the travel destination was certainly another factor for imposing on them such a contractual obligation. As mentioned above, travellers are increasingly facing events which can affect their holiday (an accident, illness, etc.) or even interrupt it in tragic circumstances. We can quote here recent examples such as the violent storm in Vietnam in November 2018, the terrorist attacks in Egypt or the tsunami in Indonesia in December 2018, where tourists were unable to continue their trip or simply to return home or were killed or seriously injured. However, even under such tragic circumstances, French organisers and retailers often intervene voluntarily to offer assistance to their clients 11 . In fact, French courts recognised at an early stage an obligation to assist travellers in difficulty – well before the adoption of the European directives on travel. Indeed, in an old case dated from 1969 12 , the Cour de Cassation (the highest court in the French legal system) held a travel agent liable towards two tourists injured in a road traffic accident during an excursion in Egypt for failing to provide them effective assistance after the accident. The court considered that such an obligation to assist was included in a more general “ obligation of care and diligence ”. In other words, the travel contract already covered an obligation to provide assistance to a traveller in difficulty through a general obligation of care and diligence, without the need for an express stipulation. Under French contract law, the obligation of care and diligence is also considered as an “ obligation of means ” 13 . In brief, the chapter of the French civil code relating to contract law did not distinguish among the various contractual obligations. A theory was developed in the 19 th century and adopted by case law to distinguish an obligation of result (where a determined result is expected) and 11 Risques politiques, accidents et catastrophes: responsabilité de l’agence de voyages – E. Llop – Gaz. Pal. Avril 2006, n°92-94, pp12-20. 12 Cass. Civ. 1, 15 December 1969, Bull. civ. 1969 n° 394. 13 “Obligation de moyen”.