Collective Commentary about the New Package Travel Directive

ROMANIA | ILIE DUMITRU 1131 In the application of this article, a subsequent normative act was adopted. This is the Order of the Minister of Tourism no. 156 of 15 January 2019 for the approval of Procedures to guarantee the amounts paid by passengers in connection with the package travel/associated travel services in case of the insolvency of the organizing tourism agency and of the passenger compensation procedures. By this Order, four types of guarantees that can operate distinctly or in combination are regulated: 1. bank guarantee letters, 2. insurance policies, 3. fiduciary contract, 4. travel package guarantee fund. Theoretically, there may also be other legally constituted guarantee instruments. The tour operator (“organiser”) is the one that guarantees payments made by travellers or on behalf of travellers whether packages are directly sold to travellers or through a retailer who is acting under a mandate contract with power of representation, signed with the organiser. If the organiser has not been given the right to represent him in the relationship with the tourist (there is no mandate contract with power of representation), then the retailer is considered to be the organiser of that travel services package, with all the consequences that come from here (obligation to have an organizing agency license issued by the Ministry of Tourism, the obligation to have a guarantee of the travel packages instrument in case of insolvency, etc.) 10 . At the same time, Minister of Tourism’s Order no.156 / 2019 overrides the requirements of Directive (EU) 2015/2302 because it stipulates that where the contract for the package includes the transport of passengers, the guarantee includes the repatriation of passengers “no matter if the execution of the package is affected by insolvency of the organizing touring agency”or travellers are unable to return to the place of departure or to the place agreed by the parties. However, the Directive requires the existence of a system of passenger protection exclusively for insolvency in the case of the organiser of a travel services package. On the other hand, according to article 19 of G.O. no. 2 / 2018, the organisers operating in the national territory and selling packages of travel services to travellers have the obligation to send periodically to the Ministry of Tourism 10 According to the Romanian legislation, economic operators wishing to carry out tourism agency activity must obtain a license from the Ministry of Tourism in advance, which may be of two types: for an organiser or for retailer. After the transposition of Directive (EU) 2015/2302 into national law, a re-licensing of the organizing agencies was also carried out and there was added a new requirement to be met, namely the provision of an instrument to guarantee passengers in case of organiser insolvency. Retailers are not required to comply with this guarantee.