Collective Commentary about the New Package Travel Directive

1250 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE the package. This aims to avoid a doubling of costs and litigation. At the same time, uniform rules on liability will facilitate cross-border transactions by organisers and retailers. Articles 11 and 12 provide for the remedies available to the traveller in the event of lack of conformity, including the lack of performance and the improper performance of the services. These rules are based on the same principles as Articles 5 and 6 of Directive 90/314/EEC, but are presented in a more systematic fashion, providing certain clarifications and closing certain gaps. Article 11 lays down the obligations to remedy the lack of conformity and to make suitable alternative arrangements for the continuation of the package where a significant proportion of the services cannot be provided as agreed in the contract. It is clarified that the latter obligation applies also where the traveller’s return to the place of departure is not provided as agreed. However, where it is impossible to ensure the traveller’s timely return because of unavoidable and extraordinary circumstances, the organiser’s obligation to bear the cost for the continued stay is limited to EUR 100 per night and three nights per traveller in line with the proposed amendment to Regulation (EC) No 261/2004. Article 12 contains provisions on price reductions related to lack of conformity and to alternative arrangements resulting in a package of lower quality, as well as on damages. In accordance with the Court’s ruling in Case C-168/00 Simone Leitner, paragraph 2 clarifies that also non-material damage has to be compensated. Paragraph 4 regulates the relationship with compensation based on other legal grounds. Since for many travellers the first point of contact is the retailer through which they booked the package, Article 13 provides that travellers may address messages, complaints or claims also to the retailer, the receipt of such notifications being decisive for compliance with any time-limits or prescription periods. Under Article 14, organisers are obliged to provide assistance to travellers who are in difficulty. 4.5. Insolvency protection (Articles 15 and 16) Directive 90/314/EEC created a general obligation for ‘the organiser and/or retailer’ to provide insolvency protection so as to ensure the repatriation of passengers and the refund of advance payments in the event of insolvency. Due to different legal solutions chosen by the Member States, this often led to duplication of costs for organisers and retailers. According to Article 15 of this proposal, only package organisers and retailers who facilitate the purchase of ‘assisted travel arrangements’ are subject to this obligation. At the same time, it lays down more specific criteria on the effectiveness and the scope of the required protection. To facilitate cross-border operations, Article 16 (1) explicitly provides for the mutual recognition of insolvency protection procured under the law of the organiser’s/relevant retailer’s Member State of establishment. To ensure administrative cooperation, Article 16 obliges Member States to designate central contact points.