Collective Commentary about the New Package Travel Directive

1128 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE under paragraph 2 of the same article, which allows Member States to introduce/ /maintain the retailer’s responsibility for the execution of the package of travel services. If a mandate contract is concluded between the organiser and the retailer, whereby the former authorizes the latter to conclude certain legal acts/contracts, liability may lie with the organiser or the retailer, as is a mandate contract with or without power of representation. Article 2009 of the Romanian Civil Code defines the mandate contract as a contract whereby a party, appointed as principal, undertakes to conclude one or more legal acts on behalf of the other party, called as representative. This definition is intended to cover both the mandate with representation and the mandate without representation. According to art. 2011 C. civ., Mandate is with or without power of representation. The mandate is with power of representation when the representative concludes legal acts and/or contracts in the name and on behalf of the principal. Unless otherwise provided by the circumstances, the representative shall represent the principal at the conclusion of the acts for which he was empowered. Therefore, as a rule, the representative is considered the same as principal, the representation being of the nature of the mandate contract. In the event of the conclusion of the legal act for which the mandate was given, direct legal relations are born between the principal and the third party; as a rule, in the case of this type of mandate contract, there are no direct legal relations between the representative and the third party. Applying these legal provisions to the situation of the contract where the tourist purchases a package of tourist services, it follows that whenever the retailer has concluded a mandate contract with the organiser, a direct contractual relationship between the organiser and the tourist is established, and this circumstance would allow the tourist to entice the organiser’s responsibility for providing all tourist services included in the purchased package. It is possible, however, for the organiser to conclude with the retailer a mandate contract without power of representation. According to art. 2039 paragraph 1 of the Romanian Civil Code, “The mandate without representation is the contract under which a party, appointed as representative, concludes legal acts in his own name but on behalf of the other party, appointed as principal, and assumes to third parties the obligations resulting from these acts, even if those third parties were aware of the mandate.”.