Collective Commentary about the New Package Travel Directive

1170 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE he is acting exclusively as a travel service provider, as an intermediary or in any other capacity, or that a package or a linked travel arrangement does not constitute a package or a linked travel arrangement, shall not absolve that organiser or trader from the obligations imposed on them under this Directive. Correlation table attached to the explanatory note to the latest amendments to the Consumer Protection Act shows that Article 23 of the Directive is transposed into Slovenian law within the provisions of Article 1 of the Consumer Protection Act. However, this article only contains definitions of the terms “travel organiser” and “travel retailer” and a general provision that the rights that belong to the consumer under this Act cannot be restricted or excluded by contract. This covers the provisions of the second and third paragraph of the Directive’s Article 23 58 , but does not contain an express rule concerning the inoperability of the organiser’s or trader’s statements as to their status under the package travel rules. Nevertheless, we can arrive at the same result through proper interpretation of the general provisions of the law, since the definitions of organiser and retailer are based on objective criteria concerning their business activities and not on their statements. Additionally, the consumers’ rights under the act have a mandatory nature and cannot be rescinded by unilateral statements. 4. ASSESSMENT OF THE CORRECTNESS OF IMPLEMENTATION The analysis of the Slovenian legislation transposing the law of the New Package Travel Directive leads us to conclude that has been correctly implemented in the Slovenian law. The national legislature complied with the requirement of maximum harmonisation 59 and did not maintain or introduce provisions diverging in substantive terms from those laid down in the Directive unless where specifically provided for by the Directive (e.g. the subsidiary liability of the retailer for the compliance with the package travel contract). The minor deviations from the Directive’s wording, described in the previous chapter, should not cause problems in the application of the new rules, since they do not lead to a different level of protection as that mandated by the Directive but 58 “2. Travellers may not waive the rights conferred on them by the national measures transposing this Directive. 3. Any contractual arrangement or any statement by the traveller which directly or indirectly waives or restricts the rights conferred on travellers pursuant to this Directive or aims to circumvent the application of this Directive shall not be binding on the traveller.”. 59 Article 4 of the Directive.