Collective Commentary about the New Package Travel Directive

NETHERLANDS | NICK DE LEEUW | JUDITH TERSTEEG | FRANK RADSTAKE 1049 The former definition in the Dutch Act has led to various proceedings on the question as to whether package travel could exist without a responsible travel organiser. In the Netherlands, we faced a situation in which travel agencies offered various travel services for the same trip, but as long they did not do so “in their own name”, they could not be considered the organiser. The travel agencies had to clearly indicate on the booking confirmation that they only acted as intermediaries and that the traveller in fact concluded a contract directly with the listed travel providers (such as an airline, a hotel, etc.), and in this manner were not liable for the implementation of the trip. There was (at least in the Netherlands), ambiguity about the question to what extent the Dutch definition of “travel organiser” applied within the context of the Directive on package travel, particularly after the Garrido ruling of the European Court of Justice 17 in which the definition of “ package travel ” was interpreted broadly. On June 2010, the Supreme Court 18 ruled in (test) proceedings between industry association ANVR and Guarantee Fund SGR that the “own name criterion” in effect in the Netherlands was not incompatible with the Directive on package travel. Even though various Dutch legal experts defended that the “own name criterion” was based on a mistake of the Dutch legislator and was incompatible with the Directive of 1990 in effect at that time. After all, based on the Directive of 1990, it could be argued that travel agencies which prepare packages in the manner set out above that consist of different travel services are simply organisers. However, the ‘own name criterion’ added to the definition of ‘organiser’ by the Dutch legislator prevented this. The ruling of the Supreme Court was criticised at that time by both professor Loos 19 and professor Jongbloed 20 . Their main criticism was that there would be situations in which a package would be offered without a responsible travel organiser 21 . Because of this ruling by the Supreme Court 22 , Dutch travel agencies could continue with the persistent practice of listing various travel services provided by 17 European Court of Justice EU 30 April 2002 case C-400/00: ECLI:EU:C:2002:272. 18 Supreme Court 11 June 2010; ECLI:NL:PHR:2010:BL8510;NJ 2011:448 with notes by Jac.Hijma (SGR/ /ANVR). 19 Dynamic packaging en de Hoge Raad: waar is de reisorganisator gebleven?: Dutch Magazine for European Law, issue 8; 2010. 20 “De juridische kwalificatie van een door een reisbureau samengestelde reis”, Tijdschrift voor Consumentenrecht en handelspraktijken 2010. . 21 Prof.mr. M.B.M Loos in NtER October 2010 “Dynamic Packaging en de Hoge Raad: Waar is de reisorganisator gebleven?”. 22 For the correct application of this ruling of the Supreme Court, refer to, inter alia , the Court of Arnhem- -Leeuwarden of 17 January 2012 (ECLI:NL:GHLEE:2012:BV1070).