Collective Commentary about the New Package Travel Directive

ARTICLE 3 | VINCENZO FRANCESCHELLI AND CARLOS TORRES 119 The CJEU replied positively to the first question, considering that the definition of Article 2/1 of the 1990 Directive does not contain any element that prevents trips shaped by consumers, such as this one, from being considered as package travels and, consequently, from having applied its protective regime: “The Directive, which is designed amongst other things to protect consumers who buy package holidays, gives a definition of that term in Article 2(1) whereby it is enough, for a service to qualify as a package, if, first, the combination of tourist services sold by a travel agency at an inclusive price includes two of the three services referred to in that paragraph (namely transport, accommodation and other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package), and, second, that service covers a period of more than 24 hours or includes overnight accommodation.” (recital 13). The second question was as follows: “May the expression ‘pre-arranged’ which appears in the directive be interpreted as referring to the moment when the contract is entered into between the agency and the customer?”. The CJEU, in line with its answer to the first question, took the view that it “necessarily covers cases where the combination of tourist services is the result of the wishes expressed by the consumer up to the moment when the parties reach an agreement and conclude the contract.”. The legislator’s concerns are not limited to the traditional prior arrangement by a single operator or to the possibility of the traveller shaping the different travel services according to the one benefiting from the protective regime of the European framework, expressing other possibilities in recital 10: “In the light of market developments, it is appropriate to further define packages on the basis of alternative objective criteria which predominantly relate to the way in which the travel services are presented or purchased and where travellers may reasonably expect to be protected by this Directive.”. Toexemplify straight away such situations, let us lookat the first threementioned in recital 10: “where different types of travel services are purchased for the purpose of the same trip or holiday from a single point of sale and those services have been selected before the traveller agrees to pay, that is to say within the same booking process” [ customised packages – Article 3/2/(b)/(i)]. “where such services are offered, sold or charged at an inclusive or total price” [ ibidem , Article 3/2/(b)/(ii)].