Collective Commentary about the New Package Travel Directive

ARTICLE 3 | INMACULADA GONZÁLEZ CABRERA 145 duly inform about the product that the consumer acquires, provided it is a linked travel arrangement, and due to the similarity between it and the package travel regulated in the norm, the consumer’s legitimacy must be agreed upon, so that the legal regime that governs the package travel contract is applied to his vacation package and may, therefore, demand responsibility for the total or partial breach of the contract 20 . IV.2. The insolvency protection The second measure in the Directive 2015/2302 concerns the insolvency of the operator with whom the dynamic package or linked travel arrangement is contracted, regardless if it is the direct provider of the service (for example, the carrier offering the flight and the hotel), that is, an intermediary (OTAs or any other intermediary). It is necessary to specify that the person obliged to provide this guarantee is not the service provider who, we reiterate, is the one with whom the contract is concluded, but rather the intermediary that allows the selection and assembly of such elements. This statement is clear when we interpret paragraphs 1 and 4 of article 19 of the Directive 2015/2302, but especially looking at the express content of the standard forms included in Annex II, where it is established that this guarantee takes effect when certain services included in the linked travel arrangement are no longer provided, because of the insolvency of the intermediary who permits the assembly of the elements of the travel and not of the direct provider of the service. This guarantee is not intended to cover the disagreement regarding the specific service and, precisely for this reason, it should not be supported by the trader who is obliged to execute the service, but by the trader who allows the combination of these through his website or through other hyperlinks. The guarantee mentioned before will not operate in the same way for the package travel and for the linked travel arrangement or dynamic package, due to the different responsibility assumed by the OTA that organizes the travel and the tour operator that permits, through its website, the assembly of the elements of the dynamic package. In fact, we are referring to the strict liability incurred by the organizer in the package travel contract (article 162 of the General Consumer and User Protection Act and 13 of the Directive 2015/2302) and the null 20 We share at this point the thesis of GONZÁLEZ FERNÁNDEZ, B.: “Redefiniciones y armonización en materia de viajes combinados”, ob. cit. , p. 8.