Collective Commentary about the New Package Travel Directive

ARTICLE 3 | INMACULADA GONZÁLEZ CABRERA 141 However, it is difficult for us to share this opinion 13 , because we understand that the Spanish legal system does not endorse this analogous application of the rules of protection for package travel to dynamic packages, insofar as previous work of organization of the different services by travel agencies 14 does not really exist, which is precisely what characterizes the package travel contract 15 . In the case of the dynamic package, what traders do is to offer direct or indirect services, but it is the consumer who will assemble them simultaneously or successively. Indeed, the work done by the tour operator through its website to facilitate the assembly of the different services is just an intermediation effort. Therefore, when the consumer selects and assembles the elements of his travel, he does not conclude a single contract, but rather as many contracts as the tourist services he requires. This is clarified by the article 3.5 of the Directive 2015/2302, when defining the linked travel arrangement (the dynamic package), clarifying that the results from the combination made by the consumer will be “ separate contracts with the individual travel service providers, if a trader facilitates: a) on the occasion of a single visit or contact with his point of sale, the separate selection and separate payment of each travel service by travellers; or b) in a targetedmanner, the procurement of at least one additional travel service from another trader where a contract with such other trader is concluded at the latest 24 hours after the confirmation of the booking of the first travel service ”. 13 We already had the opportunity to position ourselves in GONZÁLEZ CABRERA, I.: ¿Estamos ante el mismo producto si se adquiere en línea un viaje combinado o distintos servicios de viaje vinculados?, Revista de Derecho Civil, Vol. 3, num. 3 (july-september 2016), p. 139 -144. The same line is also followed by FERRER TAPIA, B.: “Aspectos subjetivos de los paquetes dinámicos. La situación del consumidor”, ob. cit., p. 32, when he states that it is “very difficult for him to think that, by the technique of analogy, the regulation of package travel can be applied to dynamic packages for the main reason... In a package, travel is always involved, as one of the contracting parties, a travel agency, the organizer, either because it has organized and sold the trip to the consumer, or because it has only been responsible for their organization. However, when in a dynamic package several touristic services are contracted together, the contracting parties are the consumer and the effective provider of the service, be it the accommodation companies, the airline, etc. In principle, the online travel agency acts as a mere commission agent, they are representatives in the name of and on behalf of third parties and are paid by commission. In this case, it can only act as a retail travel agency, which sells or presents offers for sale. As a result of the elaboration and contracting of the dynamic package, an organizing agency does not intervene, which always happens in a package travel. In our opinion, this difference is enough to exclude the analogous application of the norm”. (Translated to English). 14 A different question is whether, in the future, we should continue to reserve exclusively to tour operators the organization and sale of package travel. On this subject we have manifested our opinion in previous works, GONZÁLEZ CABRERA, I.: “La liberalización de los servicios en el mercado interior y su incidencia en la actividad de las agencias de viajes”, ob. cit., p. 64 and following. 15 For this purpose, the declaration of MARTÍN OSANTE, J.M.: “Información, contenido y modificación de los contratos de servicios turísticos”, Diario La Ley, núm. 7315, 7 enero de 2010, ed. Digital, p. 3, “If the person who carries out the previous combination of the elements that make up the travel is the consumer, it would no longer be a package travel”. (Translated to English).