Collective Commentary about the New Package Travel Directive
FRANCE | EMMANUELLE LLOP 797 presented itself with the expected transposition of the new Package Travel Directive of 25 November 2015. This so-called “maximum harmonization” PTD does not provide for strict liability stipulations, nor does its predecessor of 1990. This was the opportunity to adapt directly in the Tourism Code the following formula: “ Member States shall ensure 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 .”. (Article 13 PTD). Unfortunately, perhaps due to consumer lobbying or to the government’s frosty reception – or its ignorance – we have seen the maintenance of strict responsibility in the new French Tourism Code. There is no substantive change except in the terminology used, as the professional who sells a tourist package (according to article L. 211-I-1) is automatically responsible for the performance of the services provided for in the contract, implied in the contract of sale of the tourist package. This happens directly if they perform these services themselves, or indirectly if they entrust the performance of these services to other travel service providers. The professional retains his recourse against service providers in actions which we can assume will continue to be based on supplying proof of the service provider’s fault (Civ. 1ère 15.03.2005 Bull. civ. I No138). Strict liability, a derogation from the European text, therefore continues in France and is now shared between organiser and retailer. ORGANISER AND RETAILER ARE BOTH STRICTLY LIABLE France has intervened with the European Commission to ensure that the possibility of placing the (strict) liability on the retailer, in addition to the organiser, is maintained, following the lobbying of the professionals themselves. The objective pursued by France is to facilitate the complaints and actions of the traveller, who can thus act against his seller, which is therefore the retailer within the meaning of the PTD (according to the theory of the “ single desk ”), but also against the organiser in case of improper execution of his package. However, a basic remark needs to be pointed out here: the spirit and the letter of the Directive 2302 and the Tourism Code make the organiser AND retailer (article 13 PTD) strictly liable.