Collective Commentary about the New Package Travel Directive

PORTUGAL | CARLOS TORRES 1103 6. INTERMEDIARY: YET ANOTHER SUBTERFUGE TO EVADE THE APPLICATION OF THE EUROPEAN LAW In Article 2/2/(b) there is yet another questionable innovation by the Portuguese Law that clashes with the NPTD, since acting as a mere intermediary would exclude a good part of package travel and linked travel arrangements. For example: the traveller requests a flight to Paris on the Airline Y, with accommodation at the Hotel X. As an intermediary, and given that the agency is limited to book two main travel services chosen by the client, it constitutes a package travel, and so, not being able to lead to the exclusion of its protective regime. The famous ClubTour / Gonçalves Garrido case, which due to its importance is the only one mentioned by the European legislator (recital 8), shows how erroneous the path taken by the Portuguese legislator is. Such exclusion is obviously not provided for in Article 2/2 of the Directive (in cases where it is not applicable) and openly conflicts with Article 23 of the European text, which the Portuguese legislator conveniently did not transpose, as was his duty: “Imperative nature of the Directive A declaration by an organiser of a package or a trader facilitating a linked travel arrangement that he is acting exclusively as a travel service provider, as an intermediary or in any other capacity, or that a package or a linked travel arrangement does not constitute a package or a linked travel arrangement, shall not absolve that organiser or trader from the obligations imposed on them under this Directive”. Aspect that the European legislator expressly warns about in Recital 46: “It should be confirmed that travellers may not waive rights stemming from this Directive and that organisers or traders facilitating linked travel arrangements may not escape from their obligations by claiming that they are simply acting as a travel service provider, an intermediary or in any other capacity”. That intermediation may exclude the liability of the travel agency, but not the applicability of the Directive, as it flows from Recital 22: “The main characteristic of a package is that there is one trader responsible as an organiser for the proper performance of the package as a whole. Only in cases where another trader is acting as the organiser of a package should a trader, typically a high street or online travel agent, be able to act as a mere retailer or intermediary and not be liable as an organiser. Whether a trader is acting as an organiser for a given package should depend on that trader’s involvement in the