Collective Commentary about the New Package Travel Directive

ROMANIA | ILIE DUMITRU 1129 Therefore, in the case of this type of mandate contract, the representative concludes legal acts in his own name, but on behalf of the principal. The element of difference fromthe other type ofmandate contract is given by the representation power. In the case of the mandate with power of representation, as mentioned above, the representative concludes legal acts in the name and on behalf of the principal. On the contrary, in the case of the mandate without power of representation, the legal acts are concluded by the representative in his own name but on the account of the principal, which means that the effects of the contracts concluded by the representative will affect the principal’s assets only indirectly. In other words, in the relations between the representative and the third party with whom he contracted, the representative assumes his obligations personally, even if the third party knew about the mandate 8 . Concluding and executing the mandate contract without power of representation creates two categories of legal relationships: • the legal relationship between the principal and the representative (internal report); • the legal relationship between the representative and a third party (an external report). Article 2040 par. 1 of the Romanian Civil Code explicitly provides that since the contract is concluded between a representative and a third party, “ no legal relationship is borned between the principal and the third party ”. Therefore, in the event of the conclusion between an organiser and a retailer of such a mandate contract (without power of representation), there is no legal relationship between the tourist and the organiser. This means that, if the tourist does not benefit from the contracted tourist services, he does not have any direct means of action towards the organiser, despite the general principle of organiser liability, enshrined in article 13 of Directive (EU) 2032/2015. Such probable situations were envisaged by the European legislator, who stated in the explanatory memorandum to the Directive that “Given the differences in national law and practice regarding the parties to a package travel contract and the receipt of payments made by or on behalf of travellers, Member States should be allowed to require retailers to take out insolvency protection as well” 9 . 8 Applications of mandate contract without power of representation are: commission contract, consignment contract and contract for expedition services. 9 See par. 4 of the Preamble of the Directive (EU) 2015/2302.