Collective Commentary about the New Package Travel Directive

1112 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE bankruptcies in the summer of 1993. The deadline for transposing Directive 90/314/EEC was until 31 December 1992 (Article 9, paragraph 1), nonetheless, Germany only implemented it in the second half of 1994. For this reason, Article 7 of the Directive, which stated that “the organiser and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency”, was only transposed to § 651 K of the BGB, on 24 June 1994, coming into force on 1 st of November of that year. Applying the principles of the Francovich case, in which the Luxembourg court recognised, for the first time, the responsibility of a Member State for the failure to transpose a Directive designed to protect workers in the event of the insolvency of the employer, in the Dillenkofer case it applied mutatis mutandis in the field of package travel consumers, with the State’s civil liability institute resulting from inaction in the transposition of European legislation. As the insurance has a limit of 110 million euros, the State unexpectedly assumed the payment to injured travellers in the amount of 237 million euros. When news appeared on German televisions that tourists were being prevented from leaving hotels and accessing their rooms, sleeping by the pool, public opinion inflected the ambiguous position of the German government, saying that repatriations and reimbursements were a problem for the insurance company. However, the German government unexpectedly announced, on 11 December 2019, that German travellers will be entitled to receive reimbursements for the trips they will not make as a result of Thomas Cook’s bankruptcy. They are assuming, in place of the insurer, the respective payment. The claim is estimated at 347 million euros, so by deducting the 110 million euros borne by the Zurich group, German taxpayers will pay 237 million euros, that is, more than 2/3 of the loss. The German executive certainly had in mind that the German courts and the CJEU would not fail to condemn him for the incorrect transposition of the NPTD. In addition to the Dillenkofer case, in which the Luxembourg court found that the failure to transpose a directive in a timely or incorrect manner creates civil liability for the Member State vis-à-vis consumers injured by the collapse of tour operators, other decisions were certainly considered by the German executive, namely: