Collective Commentary about the New Package Travel Directive

NETHERLANDS | NICK DE LEEUW | JUDITH TERSTEEG | FRANK RADSTAKE 1047 greatest level of harmonisation to erase national differences as much as possible. As a result, this Directive differs substantially from the Directive from 1990. Back then, Member States had significant rights to deviate from the Directive. We will discuss below that the Netherlands did so on the main sections, which resulted in a long period of uncertainty as to whether Dutch legislation was in line with the Directive. Especially after the Garrido ruling of the European Court of Justice EC 11 , the Dutch legal (travel) sector argued that the Netherlands had failed to properly convert the Directive, for example by including the ‘own name criterion’ in the definition of travel organiser in the Dutch Act. We will discuss this later. The Act 12 of 6 December 2017 took effect on 1 July 2018. The Act implemented the Directive in the Dutch Civil Code (DCC) 13 . The new Act applies to travel agreements and linked travel arrangements concluded as of 1 July 2018 14 . This Chapter primarily reflects on a number of ambiguities and difficulties that arise from European and Dutch legislation (that are relevant to the daily operations of travel agencies), and on a number of differences in the Dutch translation of the Directive compared to the English text. In this context, we take an in-depth look at the main definitions of the Act, being the definition of organiser, of package (travel) and of the linked travel arrangement (a new phenomenon). We then discuss the information requirements, followed by the regulations on non-conformity and force majeure. We also take an extensive look at the financial obligations in the context of insolvency of the organiser. First, we will briefly reflect on the old Directive and the associated Dutch Act, as well as the manner in which the Dutch legislator has implemented the new Act. 11 ECJ EC 30 April 2002, C-400/00. 12 Formal: Act of 6 December 2018, for the amendment of Book 7 of the Dutch Civil Code, the Dutch Consumer Protection Enforcement Act, and any other Acts related to the implementation of Directive (EU) 2015/2302 of the European Parliament and the Council of 25 November 2015 on package travel and linked travel arrangements, amending Directive 2006/2004 and Directive 2011/83/EU of the European Parliament and the Council, revoking Directive 90/314/EEC of the Council (PbEU, L326) (Implementing Act Directive on Package Travel and Linked Travel Arrangements). 13 Title 7A of Book 7 of the Dutch Civil Code and some amendments in the DCPEA. 14 Article 226 Transitional Act New Dutch Civil Code: “The amendments of Title 7A of Book 7 resulting from the Implementing Act Directive on Package Travel and Linked Travel Arrangements do not apply to travel agreements concluded before the introduction of this Act. The previously applicable Title 7A of Book 7 of the Dutch Civil Code continues to apply to these travel agreements.”.