Collective Commentary about the New Package Travel Directive

1090 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE With Decree-Law No. 17/2018, the legal status of service providers has surprisingly reverted to a position in which it is impossible for them to combine other travel services with their own. It is worse than the previous Travel Agency Law and it grossly ignores the internal markets for services ’ extraordinary opening in 2006, introduced by the Services in the Internal Market Directive 2006/123/ CE, also known as the Bolkestein Directive, and most of all by the New Package Travel Directive. The classic exclusivity principle , established in Art. 4, cannot, therefore, subsist due to the clear intention of the European legislator to cover all service providers by incorporating a broad definition of “trader” in Article 3/7. Service providers had long been able to sell services other than their own, having only been banned form package tours (in Directive 90/314/EEC, only the tour operator and the retailer were indicated, because since 1990 – the time of its publication – only a pre-arrangement of services through a brochure was possible, given that the Internet would only appear in 1994). In Portugal, airlines had long been legally selling a fly-drive, just as hotels were combining accommodations and golf: “The selling of services which do not constitute package travel carried out through telematics way or the Internet, by lodging touristic ventures and transport companies, shall be excluded from the provision of paragraph 1” (Article 4/3 previous LAVT, regarding the exclusivity principle). Therefore, the transposition of the NPTD, in Portugal, should include all singular or collective people who combine travel services, in order to cover hotels, airlines (a special concern from the European legislator given the high number of bankruptcies), car rentals, etc., while replacing, regarding insolvency protection, the travel agencies’ public guarantee fund (Travel and Tourism Guarantee Fund) for any other means: individual (bank guarantee, insurance) or collective. By forbidding providers from combining services, rather than applying the NPTD rules to them, it weakens the protection of consumers who purchase combined services from airline companies, one of the few achievements of the European Union against the powerful IATA 2 . 2 The European legislator’s concerns can be found in recital 38: “In its Communication of 18 March 2013 entitled ‘Passenger protection in the event of airline insolvency’, the Commission set out measures to improve the protection of travellers in the event of an airline insolvency, including better enforcement of Regulation (EC) No 261/2004 of the European Parliament and of the Council ( 1 ) and of Regulation (EC) No 1008/2008, and engagement with industry stakeholders, failing which a legislative measure could be considered. That Communication concerns the purchase of an individual component, namely air travel services, and does not therefore address insolvency protection for packages and for linked travel arrangements”.