Collective Commentary about the New Package Travel Directive

1098 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The article by Carlos Neves 4 was the only one to publicly embrace the cause of retailers and was published in the best known Portuguese tourism newspaper. Due to its importance and the accuracy of its points of view, it would be worthy of online dissemination, yet it was confined to an inexpressive paper version. Many retailers, that is, most SMEs, were unaware of its mobilising content. Concerning some of its press releases, it has been omitted or softened, in terms of its disagreement regarding the transposition of the Directive in Portugal. The PCP, notwithstanding the reasons presented in the consideration of executive laws, at the time supported a political agreement known as a Geringonça 4 Minimum services in the maximums directive On this date, 800 long days have passed since the publication of the Directive on package travel and linked travel arrangements in the Official Journal of the European Union (OJEU). Having been presented as a maximum directive, similar to a EC Regulation, but without being so, the deadline for its transposition was set at more than two years, despite its announced limited possibilities for changes and a period of no less than six months, after transposition, for its entry into force. In the Portuguese case, given the small size of its domestic market, the strong presence of micro and small companies in the distribution sector (and the tourism operation), the sector’s lower verticalisation, and the weight of some foreign operators in the outgoing market, it would be advisable that the full transposition period should not be exhausted. Such would allow companies to enjoy an extended period of adaptation, knowing the final text in time, in order to carry out the inevitable legal analysis and, according to the new framework, to prepare their commercial negotiations for the year 2018. Nevertheless, it is worrying, albeit sadly revealing, that in a text that was presented as practically unchanged since the end of 2015 and after repeated public statements regarding the fulfilment of its deadline for transposition, the time limit has not been met. It is also worrying that, at the moment, contrary to what succeeded in other Member States (some with the presentation and public discussion of its different versions during 2016), and with the transposition already carried out, there is still vagueness and (almost) generalised unawareness of the market regarding the final text. The continued opacity and secrecy in this matter did not allow the broader discussion (and contribution) that all travel agents, regardless their area of activity and size, precisely deserved. This profound change in our business, one of the most relevant in the last 25 years, deserved a public debate, opened and enlightened, which cannot be exhausted in halls and corridors, however worrying the news may seem. This has led to the appearance, hopefully ephemeral, of pseudo-solutions, manifestly abusive and disproportionate, in some cases. The already confirmed non-compliance with the transposition, which has obviously those responsible, constitutes, in addition to a lack of respect for professionals in the sector – now substantially extended by the definition of operator –, a serious cause for disturbance and uncertainty that the sector would gladly dispense this year, in which it will have to face other and more complex challenges (PCI / DSS and RJPB), and in which it will have to respond not only within a few months, but also in the peak of a decisive sales season. As for possible obligations to repair the damages caused to individuals by not transposing the deadline, there are already Community decisions in this regard, binding the offending Member States, under certain conditions. For the now retail distribution, a result of its inexplicable erasure ( nostra culpa ) throughout this process, there will seemingly be solutions that result from the imbalance generated, which were not properly safeguarded by those entitled to do it, and which were not even enforceable under the Directive, namely the option of making the retailer responsible for travels he did not organise. In case of serious disturbance or insolvency of the organiser, in terms of defective compliance or changes in schedules, compensation for moral damages, among many others, will conclude in the call to the first line of response, the retailers. We risk, therefore, to have a kind of gold guarantee fund, except that by not receiving foreign investment, directly or indirectly, and to guarantee risks to which we have barely contributed (or not contributed at all), we will finance foreign operators who decide to locate their base of operation in our country, thereby substantially reducing the guarantees that would be required of them in the other Member States.