Collective Commentary about the New Package Travel Directive

PORTUGAL | CARLOS TORRES 1117 – with fines that can reach 44,000 € –, we are witnessing an attack on the structural principle of economic freedom to provide services in the European Economic Area, in addition to the violation of, among others, the Bolkestein Directive and the comprehensive definition of operator contained in Art. 3/7 NPTD. 11.6. The bankruptcy of Thomas Cook makes it possible to draw several lessons in different Member States, especially in Portugal. The German State did not comply in the slightest with the provisions of Art. 17 NPTD, limiting liability, which was supported by an empirical criterion – the most significant claim in the history of bankruptcies involving tour operators. Furthermore, Germany also failed to comply with a set of decisions by the EU Court of Justice, namely the Rechberger, Baradics and Blödel-Pawlik cases. The German State took responsibility over the payment to the travellers, currently valued at 237 million euros (about 2/3 of the compensation), with the apparent purpose of escaping a legal dispute that would have been unfavourable, disguising the mistake made in transposing the NPTD. Of course, Thomas Cook’s significant debts to hotels and other suppliers will not be paid by the German State, given that the NPTD only protects travellers (consumers and professional travellers, not including managed business travel). This assumption of responsibility by the German State is aided because, at BGB, the retailer is not responsible for the performance of the package travel (Art. 13/1). Had it followed the Portuguese option, however, which flowed from the APAVT-DECO agreement, the consequences of the Thomas Cook bankruptcy would have been, in the first place, sponsored by German retailers, leading to the inherent collapse of a high number of micro, small and medium- -sized companies (domino effect), aggravating unemployment. According to recital 40 of the Directive, the security must cover a sufficiently high percentage of the organiser’s turnover concerning package travel. Only extreme cases are excluded, that is, they “should not have to take into account highly remote risks, for instance the simultaneous insolvency of several of the largest organisers, where to do so would disproportionately affect the cost of the protection, thus hampering its effectiveness”. This means that for the insolvency protection system to be effective according to Article 17, it must take into account the risk generated by some of the major operators in peak season. Still, the system cannot consider the simultaneous failing of the operators (worst case scenario).