Collective Commentary about the New Package Travel Directive

SLOVENIA | MATIJA DAMJAN AND KARMEN LUTMAN 1167 of short-term solvency instead 44 . Under the second paragraph of Article 58 of the Consumer Protection Act, an organiser is deemed to have liquidity problems if he is incapable of fulfilling his financial obligations in due time and consequently does not provide the agreed travel services. However, since it is difficult to determine in practice when the organiser is unable to settle his obligations, a legal presumption is created that the organiser is unable to meet the due obligations if, at the request of the entity in charge of the insolvency protection, he does not provide within 72 hours evidence that the relevant travel services have been paid. The entity will request such evidence if the traveller has addressed to it a written request for payment in the event of organiser’s liquidity problems, which the traveller is entitled to do after having previously called for the fulfilment of the obligation and the organiser having failed to honour the obligation within 48 hours of the traveller’s request 45 . To ensure the effectiveness of the travellers’ insolvency protection, the Directive requires in Article 17 that organisers not established in a Member State who sell or offer for sale packages in its territory, or direct such activities there are required to provide appropriate security in accordance with that Member State’s law. Mutual recognition of insolvency protection schemes between Member States should ensure the compliance with such requirements for organisers established in other Member States 46 . In the event that the organiser is established outside the European Economic Area, however, the Consumer Protection Act requires the retailer established in the Republic of Slovenia to ensure insolvency protection instead of the organiser, unless the retailer proves that such protection is already provided by the organiser himself 47 . The Directive requires the insolvency protection to cover all reasonably foreseeable costs, thus ensuring the refund of all payments made by or on behalf of travellers 48 . Consumer Protection Act further specifies that the security provided must be sufficient to cover all payments for the purposes of the package travel by travellers in the period of the year for which the demand is highest. When calculating the required amount of the security, the type and price of package travel, the type of transport and the length of the period between down payments, final payments and the completion of the package travel must be 44 Proposal for an Act Amending the Consumer Protection Act (ZVPot-H), EVA 2017-2130-0030, p. 45. 45 Ibid., p. 45–46. 46 Article 18(1) of the Directive and Article 58(8) of the Consumer Protection Act. 47 Article 58(7) of the Consumer Protection Act. 48 Article 17(1) and (2) of the Directive.