Collective Commentary about the New Package Travel Directive

NETHERLANDS | NICK DE LEEUW | JUDITH TERSTEEG | FRANK RADSTAKE 1053 4.3. Who is the ‘organiser’ of a package? The question a travel agency must first ask itself is whether the services offered by it mean that it must be considered a (travel) organiser 27 . Article 2 of the new Directive excludes the applicability of the Directive for trips which are “ offered or facilitated occasionally and on a not-for-profit basis and only to a limited group of travellers ”. The Directive refers to, for example, trips that are organised by charity organisations, sports associations or schools a few times per year for their members, and not those offered to the public (refer to Recital 19 of the Directive). Another example is an employer which organises a company outing for its employees, as long these outings are not part of its business operations, or a person in a group of friends who organises a trip for the group. Everything has been included verbatim in the Dutch Act. So far, matters seem unambiguous. But what about the art association which annually organises trips for its members? Is this covered by the scope of the Directive and the Act? Based on the text of the Directive and the notes thereto, we would argue that this is not the case, but the Explanatory Memorandum 28 to the Dutch Act lists this as an example covered by the scope of the Directive, and, therefore, also the Act. We believe this is not in line with the Directive, and the Explanatory Memorandum itself states that the mentioned charity organisations and sports associations organising such trips seem not to be covered by the Directive/Act. 4.4. What is a package? In her overview article in Ars Aequi (2018) 29 , Siemerink 30 sets out in which instances the term ‘package’ applies. There are six ‘flavours’. A package trip exists if travel services are combined by one trader, possibly at the request of or based on choices by the traveller, before one agreement for all services is concluded (1) 31 . A package also exists if two or more travel services (irrespective of whether separate agreements are concluded with different travel service providers) are purchased from one sales location before the traveller accepts to pay (2), are purchased, offered or invoiced based on one joint or overall fee (3), are offered 27 As opposed to the old Act and Directive, the new Act and Directive no longer refer to a “travel organiser”, but to an “organiser”. 28 EM to Article 7: 501 DCC(2), page 25. 29 Legal monthly magazine Ars Aequi, May 2018 issue 67 (pages 406-410). 30 L.A.R Siemerink LL.M. is employed in the private law division of the Legislation and Legal Affairs Directorate of the Ministry of Justice and Security and one of the authors of the Dutch Act. 31 This already was fixed case law based on the Garrido (or Club Tour) ruling of ECJ EU of 30 April 2002 (C-4000/00).