Collective Commentary about the New Package Travel Directive

PORTUGAL | CARLOS TORRES 1089 This double order of values by the European legislator is reasonable, in the first place it concerns consumers and then it deals with SMEs due to their economic weight and the robust job creation represented: “Tourism plays a central role in Europe’s economy today. With some 1.8 million businesses, mostly SMEs, employing 5.2% of the total workforce, the European tourism industry is an engine for growth in the EU.” (Proposal for a Directive on package travel and assisted travel arrangements). Portuguese law apparently opted for the retailers’ responsibility for the performance of the package: “In the case of package travel, the organisers respond jointly to the retailers” (Article 35/3 of Decree-Law No. 17/2018). Portuguese law will have consecrated the agreement between APAVT and DECO, establishing that “In case of package travel, both organisers and retailers are liable for the performance of the contract”. It is a questionable option to impose on retailers the solidarity, i.e. they are also responsible for the performance of the package. In fact, according to De La Haza, the organiser assumes an obligation of result, “his performance must be related to all the professional and business activities necessary to complete a package travel; as it enters its exclusive sphere, as programmer of the package and as contracted with different companies that will perform the services directly to the consumer […] and in these cases, take all the measures applied so that, with the applied changes, a trip can continue if it satisfies the tourist or provides for his return if that happens”. However, for the author, the retailer’s scope of action is substantially different and smaller: “The retailer’s obligation is a diligent activity, not a result; his job is to sell trips previously scheduled by the organiser”. This distinction and the nature of the obligations of both the organiser and the retailer are essential when establishing its scope of responsibility in the execution of the package travel. 3. THE VERY RESTRICTIVE SCOPE OF THE TRANSPOSITION: THE ESTABLISHMENT OF THE ANACHRONISTIC EXCLUSIVITY The European legislator determined that the new rules must apply, inter alia , to any travel service provider and not just to tour operators and travel agents. The rules are imposed equally, online and offline, on everyone who combines travel services – travel agencies, tour operators, hotels, airlines, car rentals or entertainment companies.