Collective Commentary about the New Package Travel Directive

1130 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE However, although the Romanian law of contracts allows the tourist to establish a direct and exclusive contractual legal relationship with the retailer, the Romanian legislator has imposed on the organisers alone the obligation to own an instrument to guarantee tourists in case of insolvency. This makes retailers not mandated by an organiser to represent him in the relationship with the tourist to be able to sell the latter travel packages without having an instrument of protection in case of insolvency. As we will explain below, the Romanian legislator has chosen to provide that, in such situations, the retailer is considered to be an organizing travel agency! IV. PROTECTION OF PASSENGERS IN THE EVENT OF INSOLVENCY OF THE ORGANIZING TOURISM AGENCY The purpose of the provisions of Directive (EU) 2032/2015 on the protection of the traveller in the event of insolvency of the organiser ensue from paragraphs 39 to 41 of Preamble of the Directive. The European legislator wished that Member States ensure that those passengers who purchase a travel package are fully protected in the event of the organiser’s insolvency, namely that the latter provides guarantees for the repayment of all sums paid by or on behalf of the traveller and, to the extent which package includes the transport of passengers, regarding and repatriation thereof in case of organiser’s insolvency. Alternatively, it should be possible to offer passengers the continuation of the package, despite the organiser’s insolvency declaration. In this context, even if the Member States are free to decide how to organize protection in the event of insolvency, the Romanian State was more concerned with ensuring the formal transposition of the Directive and less with the effectiveness of this protection, whose functionality remains, in our opinion, questionable. Effective protection implies its availability as soon as, as a consequence of the organiser’s liquidity problems, travel services are not being performed, will not be or will only partially be performed, or where service providers require travellers to pay for them. By transposing the provisions of article 17 of Directive (EU) 2015/2302, in Romanian national law there is article 18 of the G.O. no. 2/2018, which has the same title and about the same content as the EU text.