Collective Commentary about the New Package Travel Directive

1080 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE who is acting, including through any other person, acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive, whether acting in the capacity of organiser, retailer, trader facilitating a linked travel arrangement or as a travel service provider”. Pursuant to Article 3(7) of the A.P.T., a travel trader should be understood as “a travel organiser, trader facilitating a linked travel arrangement, a travel agent or a travel service provider, being a trader within the meaning of Article 43 1 of the Act of 23 April 1964 – Civil Code or pursuing a payable activity”. Apart from other, mainly linguistic, differences, from a practical point of view, the final fragment of this definition is extremely important, which shows that such an entity may be a trader within the meaning of the Civil Code (which raises no doubts), and also, what seems to be a significant extension of the scope of the Directive, an entity pursuing payable activity, which seems so broadly defined to go beyond the definition in the Directive (as an autonomous condition for recognising the entity as a trader) 33 . (6) For unclear reasons, the legislator has omitted the phrase “where applicable to the package” from the equivalent of Article 5(1) of the Directive. The lack of this information means that interpretation of Art. 40(1) of the A.P.T. leads to the conclusion that for every package travel, any information specified on this extensive list should be given explicitly (also in the contract). However, the Directive clearly states that not all information but only that information “where applicable to the package” must be provided. If, for example, the package travel does not include meals, this information does not need to be clearly stated. (7) A similar problem to the above occurs in the case of accommodation. According to the Directive, the number of nights included in a given service must be indicated prior to the conclusion of the contract, where accommodation is included (Article 5(a)(i)). There is no such qualification (“where accommodation is included”) in the A.P.T., it is generally stated that “the number of nights included” should be indicated (Article 40(1)(1)(a)), which may suggest that even if there is no such service, this should be clearly communicated to the traveller. 33 In the opinion of D. Borek, however, this is in accordance with the Directive – see D. Borek, Przedsiębiorca w ustawie o imprezach turystycznych i powiązanych usługach turystycznych – koncepcja przedmiotowego charakteru regulacji , “internetowy Kwartalnik Antymonopolowy i Regulacyjny” 2018, No. 4, p. 22 et seq.