Collective Commentary about the New Package Travel Directive

ARTICLE 3 | VINCENZO FRANCESCHELLI AND CARLOS TORRES 111 It is, therefore, our impression that, in the Directive, – notwithstanding the sometimes ambiguous and promiscuous use of the terms tourism and travel – tourism itself has still one important role to play, even when travel, and not tourism, is formally considered. 2. A second general remark is that the aforementioned terminological ambiguity continues in the implementation of the 2015 Directive in the national States. Some States have used the term ‘traveller’ and some States have used sometime time the term ‘tourist’ or ‘tourist contract’ (or service de voyage , servicio de viaje , Reiseleistung and so on). 3. A third general remark is that the 2015 Directive is considered the final step of the EU program for the modernisation of European consumer contract law. If this is true, it must be noticed that the 2015 Directive expands the notion of consumer, extending it to entrepreneurs or for-profit organsations. As a matter of fact, while in the 1990 Directive the term ‘consumer’ was used – see, for example, art. 2 –, the 2015 Directive uses the term ‘traveler’. 4. A fourth general remark refers to the new background of the tourist – and travel – market, a concept well expressed in the Second Recital: “the market has undergone considerable changes since the adoption of Directive 90/314/EEC. In addition to traditional distribution chains, the internet has become an increasingly important medium through which travel services are offered or sold”. 5. The fifth and last remark is on the effect of the Directive. The 2015 Directive goes beyond the traditional minimal harmonisation, in favour of a so called fullharmonisation of the national legislations. Art. 4 of the Directive states “Level of harmonisation. Unless otherwise provided for in this Directive, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions which would ensure a different level of traveller protection”. Moreover, Art. 23 disposes the Imperative nature of the Directive and states that “3. Any contractual arrangement or any statement by the traveller which directly or indirectly waives or restricts the rights conferred on travellers pursuant to this Directive or aims to circumvent the application of this Directive shall not be binding on the traveller”. 4. THE DEFINITIONS ON THE NPTD 4.1. Definition (1) – Travel service The first definition pertains to ‘travel service’, referred to in the 1990 Directive, the definition was substantially new: