Collective Commentary about the New Package Travel Directive

94 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE But even where all of these conditions are met, art. 3 includes two more situations, under duplicate points, also labelled (a) and (b), that are not deemed to be package travel: where the services that do not consist of carriage, accommodation or vehicle rental do not account for a significant proportion of the value of the combination and are not advertised as an essential feature of the combination, or where they are selected and purchased only after the trip has started. As can be seen, both the structure of the norm and the formal legislative method used are questionable. Surely, the inclusion of two sets of points labelled with the same letters does not help understanding the text and can lead to serious errors in references. In addition, the drafting constitutes a good example of the flaws typically found in the norms of Community law: it is ponderous, confusing, with aspirations to be exhaustive in those matters to which it refers, making it difficult to read and even more difficult to understand. Furthermore, art. 3 (2) of the Directive has attempted to create a crystal clear concept of package travel, free of any doubts, given that it constitutes the essential subject matter over which the Directive is going to be applied. However, its second paragraph – the one containing the aforementioned duplicate points labelled (a) and (b) – creates a double scope of exclusion for situations where carriage, accommodation or vehicle rental are combined with the vague ‘any other tourist service’ referred to in point d) of art. 3 (1). The examination thereof, albeit superficial, makes it advisable to change the order in which they are tackled. In truth, the second one, corresponding to point b), creates few problems, given that the norm excludes the concept of package travel dependent on a verifiable fact, i.e. that the tourist service other than travel, accommodation or car rental should have been procured after the performance of the trip has commenced. With regard to this matter, there is an objective temporal fact that determines that the combination of elements is excluded from the concept of package travel. In effect, the time of the commencement of the performance for the trip determines that any other tourist service procured subsequently is not combined with the one already underway and therefore does not constitute package travel. In my opinion, the first ambit of exclusion is more problematic. For starters, it is formulated in the negative form. Ergo, it must be recognized that the negative formulation is what has allowed the systematic positioning of the norm in the second paragraph of art. 3 (2). Had it been formulated in the positive form, its proper positioning ought to have been point (d) itself of art. 3 (1). Having