Collective Commentary about the New Package Travel Directive

ARTICLE 3 | INMACULADA GONZÁLEZ CABRERA 147 whichhave not beenprovided to themdue to the insolvency of the aforementioned intermediary 23 . A different question arises when the dynamic package includes, as usually happens, transport as one of the services or elements of that travel. In these cases, the guarantee no longer only covers the return of the amounts charged by the tour operator but also incorporates the obligation to repatriate the travellers. This obligation is not assumed by the tour operator who has made possible the assembly of the various services, but by the one who is obliged to provide the specific transport service and who, obviously, fails to do so because of his own insolvency 24 . This only seems to be established for transport companies when they offer the combination of a flight and hotel, but not for any other operator that can offer the same service 25 . All of the foregoing should be criticized because the only effective measure of protection established in the Directive 2015/2302 for the consumer in the contracting of a linked travel arrangement, that is, the guarantee against insolvency is diluted in practice. As we have just explained, the return of the amounts previously paid is attributed to the tour operator for the services not provided due to its own insolvency. The responsibility is not assigned to anyone 23 Annex II contains a standard information form with the following tenor “However, if you book any additional travel services during the same visit to our company’s/XY’s booking website, the travel services will become part of a linked travel arrangement. In that case XY has, as required by EU law, protection in place to refund your payments to XY for services not performed because of XY’s insolvency, and, where necessary, for your repatriation. Please note that this does not provide a refund in the event of the insolvency of the relevant service provider. More information on insolvency protection [to be provided in the form of a hyperlink]” “XY has taken out insolvency protection with YZ [the entity in charge of the insolvency protection − e.g. a guarantee fund or an insurance company −]. Travellers may contact this entity, or where applicable, the competent authority (contact details, including name, geo graphical address, email and telephone number) if the services are denied because of XY’s insolvency. Note : This insolvency protection does not cover contracts with parties other than XY, which can be performed despite XY’s insolvency. Directive (EU) 2015/2302 as transposed into the national law [hyperlink]”. 24 Article 19.1 of the Directive 2015/2302: “ Member States shall ensure that traders facilitating linked travel arrangements shall provide security for the refund of all payments they receive from travellers insofar as a travel service which is part of a linked travel arrangement is not performed as a consequence of their insolvency. If such traders are the party responsible for the carriage of passengers, the security shall also cover the traveller’s repatriation ”. 25 Annex II collects different forms of information depending on whether it is a carrier or not the operator that provides the package travel services. As far as transporters are concerned, it is required to add a text like the following: “If you book additional travel services for your trip or holiday via this link/these links, you will NOT benefit from rights applying to packages under Directive (EU) 2015/2302. Therefore, our company/XY will not be responsible for the proper performance of those additional travel services. In case of problems, please contact the relevant service provider. However, if you book additional travel services via this link/these links not later than 24 hours after receiving the confirmation of the booking from our company/XY, those travel services will become part of a linked travel arrangement. In that case XY has, as required by EU law, protection in place to refund your payments to XY for services not performed because of XY’s insolvency, and, where necessary, for your repatriation. Please note that this does not provide a refund in the event of the insolvency of the relevant service provider”.