Collective Commentary about the New Package Travel Directive

NETHERLANDS | NICK DE LEEUW | JUDITH TERSTEEG | FRANK RADSTAKE 1063 travellers. Even though this ruling applies to the 1990 Directive (1990/314), we are quite certain that this ruling also applies under the current Directive. For that matter, other EU countries apparently only occasionally offer a guarantee fund, which means that the Netherlands is not performing that badly in a European context. As briefly indicated above, Article 17 of the Directive stipulates that the Member States must ensure that organisers established in their territory offer security for the repayment of “all” sums paid by the travellers in advance. With reference to recital 40 of the Directive, our legislator writes in the Explanatory Memorandum that effective protection in case of insolvency does not need to take very minor risks into account, such as the simultaneous insolvency of various major organisers if this has a disproportionate effect on the costs of the protection and correspondingly impedes the effectiveness. The security for the repayment may be limited in these circumstances (preamble 40 to the Directive). It is unclear how this relates to the explicit text of Article 17 of the Directive. In summary: it cannot reasonably be upheld that the Dutch legislator has met the obligations imposed by Article 17(1) PTD, which states that the Member States must ensure that organisers established in their territory must provide security for repayment in case of insolvency. We can substantively understand and agree with the nuance introduced by the Dutch legislator in the Explanatory Memorandum. For that matter, Article 8.1 of the DCPEA requires the trader within the meaning of Article 7:500(g) DCC 44 to consider Articles 500 to 513(d) DCC. We believe that this is not entirely correct, as only the organiser and the trader who facilitates a linked travel arrangement 45 and actually receives funds from the traveller for the facilitated service must provide a guarantee for financial incapacity (based on Article 7:513(a) and 513(b) DCC). This obligation does not apply to a pure retailer of a package or to a travel service provider not offering a package, not acting as a retailer, and not facilitating a linked travel arrangement, such as the provider of single travel services. Examples are a bed bank (single travel service) or a carrier such as KLM. Because of this mistake in Article 7.8 of the 44 A trader is each natural person or each legal entity trading in relation to agreements covered by Title 7A, including through another person who acts on his behalf or for his account, under the terms of his commercial, company, trade or professional activities, irrespective of whether he acts as an organiser, retailer, trader facilitating a linked travel arrangement or a travel service provider. 45 Only if the first trader who facilitates a linked travel arrangement also actually receives a payment for the booked travel service from the traveller. The trader does not need to offer a guarantee if he does not receive any funds or offer a guarantee for the travel service subsequently purchased from another trader.