Collective Commentary about the New Package Travel Directive

128 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE In addition to the classic brochure (pre-combination), travel services may, in light of Directive 2015/2302, be combined by the travel agent, the traveller himself or any tourism service provider, namely hotels, airlines, rent-a-cars, local accommodation establishments and even by other companies. From the restrictive dichotomy between organising agency & sales agency of 1990, in 2015, we have evolved to a polychotomy of operators, that is to say, the market has opened up, allowing other companies to compete, on an equal footing, with travel agencies 17 . 4.12. Definition (8) – Organiser The definition of ‘organiser’, in the 1990 Directive, was: “the person who, other than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer”. The new definition states: “organiser means a trader who combines and sells or offers for sale packages, either directly or through another trader or together with another trader, or the trader who transmits the traveller’s data to another trader in accordance with point (b)(v) of point 2”. 4.13. Definition (9) – Retailer The definition of ‘retailer’, in the 1990 Directive, was “the person who sells or offers for sale the package put together by the organiser”. On the NPTD, the retailer is one of the most considerably referred subjects, stating that “‘retailer’ means a trader other than the organiser who sells or offers for sale packages combined by an organiser”. Member States may, at their discretion, impose the protection of travellers in the event of the retailer’s insolvency, whichmeans that they also subscribe to the respective protection mechanism, namely insurance, guarantee funds (public or private) or bank guarantees (Recital 1). Likewise, the national legislator may determine the responsibility of retailers for the correct execution of the services included in the package (Recital 23 and Article 13/1 second part).The difference is, while in retailers, insolvency protection and responsibility for the correct execution of services is optional for the Member States, when it comes to organisers, it is mandatory. The intervention as a mere retailer or intermediary is only possible on the condition that there is a trader, who is responsible as an organiser, for the proper performance of the package as a whole (Recital 22). 17 This aspect was outlined in Publituris No. 1331, p. 6. Gianluca Rossoni also noted the situation on his recent, suggestively entitled, article “ La nuova direttiva sui viaggi a pacchetto apre definitivamente al trader in concorrenza con le agenzie ”.