Collective Commentary about the New Package Travel Directive

146 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE responsibility assumed by the tour operator as intermediary in the dynamic package [article 19.2 a) of the Directive 2015/2302]. Regarding the package travel, and regardless if the transport is included or not as one of the elements of the travel, the OTA shall provide a contractual guarantee allowing both the reimbursement of advance payments for services, which are no longer rendered, and the repatriation of the passenger if, due to the insolvency of the online travel agency, any of the service providers, including the carrier, does not provide the services to the passenger, unless the service is paid directly by him latter, and it is a service that has already been paid to the travel agency. The obligation imposed on the organizer in article 17.1 21 results from the direct responsibility that the norm recognizes for the organizer in case of any disagreement with the contract, regardless of whether the services are carried out by the trader or a third party (articles 13.1 of the Directive 2015/2302 and 162 of the General Consumer and User Protection Act). In contrast, in the case of dynamic packages the obligation to stipulate the guarantee to cover the reimbursement of all payments received from travellers is imposed on those tour operators that facilitate the contracting or assembly of the services that constitute the trip or holiday. In other words, the OTAs or intermediaries other than them which allow the contracting of services through their own website or redirect to others. Although it is true that tour operators are not the ones who conclude the contracts with consumers, being only those who facilitate contracting between them and the direct service provider. Nevertheless, normally this operator is the one who will charge to the consumer the price of the different elements that integrate his travel and, in turn, who will pay the trader that provides the service the corresponding price, having previously reduced the appropriate commission. Therefore, just like article 17.1 of the Directive 2015/2302 stipulates, the travel agency must provide a guarantee to cover the refund of services paid by travellers and not provided due to the insolvency of the travel agency 22 , article 19 imposes the establishment of a guarantee to those traders which facilitate the creation and sale of dynamic packages, taking into account they are the ones who charge for them, in order to pay back travellers the fees they have used for the holiday package services, and 21 “ If the carriage of passengers is included in the package travel contract, organizers shall also provide security for the travellers’ repatriation ”. 22 Article 17.1 of the Directive 2015/2302: “ Member States shall ensure that organizers established in their territory provide security for the refund of all payments made by or on behalf of travellers insofar as the relevant services are not performed as a consequence of the organizer’s insolvency ”.