Collective Commentary about the New Package Travel Directive

1114 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The CJEU further underlined “that a Member State has no discretion as regards the ambit of the risks that fall to be covered by the security to be provided by the travel organiser or retailer for the benefit of consumers. It is for the referring court to determine whether the criteria laid down by the Member State concerned for setting the amount of the security have the object or effect of limiting the ambit of the risks that fail to be covered by the security, in which case they would clearly be incompatible with the obligations under Directive 90/314 and would constitute a sufficiently serious infringement of European Union law which, subject to a finding of a direct causal link, might give rise to liability on the part of the Member State concerned”. 3) The Blödel-Pawlik case , in which the Luxembourg court makes it clear that the Member States have an obligation of result, indicates that: “In that connection, the Court has held, in paragraph 74 of its judgment in Case C-140/97 Rechberger and Others [1999] ECR I-3499, that Article 7 of Directive 90/314 imposes an obligation of result, that is to say, an obligation to guarantee package travellers the refund of money paid over and their repatriation in the event of the travel organiser’s bankruptcy, and that such a guarantee is specifically aimed at arming consumers against the consequences of the bankruptcy, whatever the causes of it may be.” (No. 22). 11. CONCLUSIONS 11.1. As the NPTD is a Directive of maximum harmonisation , EU countries may not introduce stricter rules than those set in the Directive, i.e. giving very little room for manoeuvre to the Member States in its transposition (Art. 4 NPTD). Despite this imposing character, in situations that offer no doubts, Portugal grossly breaches crucial aspects of the new European framework, not fulfilling neither the letter nor the spirit of NPTD. 11.2. From the start, it fails to adequately protect travellers in the event of insolvency of a major tour operator, lacking several millions of euros in the public guarantee fund (FGVT), taking into consideration a careful assessment of the risks according to the rigorous principle of effectiveness (Article 17). The empirical criterion of the largest recorded accident, which was apparently safe, was used in both Germany and Portugal. Besides having had no support in the