Collective Commentary about the New Package Travel Directive

1134 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The way the Romanian legislator regulated the system of passenger protection in the event of insolvency of the organiser is so drastic that it can be considered to go beyond the limits of a correct transposition of Directive (EU) 2015/2302 into national Romanian law. This is because, as explained above, the Romanian legislation starts from the premise that each organiser is already in an imminent situation of insolvency and that it will affect all the travel packages for which it has collected advances from the passengers, and these still have not have left or have not returned from the trip. However, this regulation is even contrary to the requirements of Directive (EU) 2015/2302, which are set out in its explanatory memorandum. It is pointed out in paragraph 40 of the preamble of the Directive that effective protection in the event of insolvency should not take into account very low risks, i.e. simultaneous insolvency of several of the main organisers, if this would disproportionately affect cost of protection, thus preventing its effectiveness. In such cases, the reimbursement guarantee may be limited. Despite these preconditions of the Directive, the Romanian legislation does not contain any criteria for assessing the risk of insolvency and no limit on guarantee. In practice, each organiser is required to have a guarantee that exceeds the difference between the amount received from the passengers and the total of the payments made to the travel service providers. Regarding the rules of operation of each guarantee instrument allowed by the Romanian legislation, the following provisions are to be taken into account, as regulated by the Order of the Minister of Tourism no. 156/2019: 1. Insurance policy Through the Insurance Policy, the insurance company guarantees the risk of the organiser failing to refund all payments made by or on behalf of travellers insofar as the relevant services are not performed as a consequence of the organiser’s insolvency; when the package travel contract includes passenger transport, the insurance policy shall guarantee also the repatriation or the payment of the repatriation cost, when the traveller is unable to return to the place of departure or to the place where the parties have agreed. The insurance company accepts to guarantee to passengers, beneficiaries of the insurance policy, in the event of insolvency of the organiser, the refund of the sums paid by them, as well as repatriation or repayment of the repatriation cost, as the case may be.