Collective Commentary about the New Package Travel Directive

1144 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE – The Club-Tour decision 9 addressed the question of whether the term of a package could be limited only to pre-arranged combinations of services. The new Directive is based on the philosophy of CJEU, as the package travel is also considered to be a combination of tourist services prepared “tailor- -made” by an organiser according to the client’s individual requirements (see Article 3, point 2, the legal definition of the package). – As regards the scope of application of the old Directive, the ruling of CJEU in case AFS Intercultural Programs Finland was also important. The ruling states that the organization and realization of a student exchange program, the essence of which is the participation of a student in the educational process at a foreign educational institution in the host country in order to acquaint with the inhabitants and culture of that country, and during which a student lives in a host family as its member free of charge, is not considered to be package travel 10 . Currently, this question can be covered under Article 2 point 2 b) of the Directive (packages offered, and linked travel arrangements facilitated, occasionally and on a not-for-profit basis and only to a limited group of travellers). This is explicitly addressed in point 17 of the Directive’s Preamble: “Accommodation for residential purposes, including for long-term language courses, should not be considered as accommodation within the meaning of this Directive.”. – Compensation for non-material damage, in conformity with the outcome of the decision-making in the case of the injured Simone Leitner, which also concerns compensation for the loss of enjoyment of a holiday 11 , is expressly regulated in Sec. 23 Art. 1 of the New Package Travel Act 12 . Other issues that we considered while interpreting the old Directive are now explicitly regulated without any doubt. • Dealing with the business travel and the protection of the traveller’s entity (unlike the consumer’s entity) 13 by excluding the application of certain 9 Judgement C-400/00 Club-Tour, Viagens e Turismo SA v. Alberto Carlos Lobo Gonçalves Garrido from 30 April 2002. 10 Judgement of the Court of Justice of the EU from 11 February 1999, AFS Intercultural Programs Finland ry, C-237/97. 11 Judgement of the CJEU Simone Leitner v TUI Deutschland BmbH & Co. KG. from 12 March 2002. 12 See also point 34 of the new Directive’s Preamble: Compensation should also cover non-material damage, such as compensation for loss of enjoyment of the trip or holiday because of substantial problems in the performance of the relevant travel services. 13 Jurčová M., op. cit., p. 28.