Collective Commentary about the New Package Travel Directive

148 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE else, including the service provider, which raises doubts about who to complain to as a last resort. Let us say, for example, that we acquire the combination of flight and hotel from an airline company, which is obliged to provide us with a contractual guarantee for the reimbursement of advance payments if it becomes insolvent, as well as for the repatriation of passengers, seeing as it is this airline that directly provides the transport service. However, this guarantee does not cover the refund of the payments for accommodation when this service is not provided due to the insolvency of the hotelier, which is the provider of that service. According to the Directive 2015/2302, the hotelier is not obliged to establish a guarantee if he has not assisted the consumer in the acquisition of this dynamic package and if the service provided in this package, the accommodation, is an element of it. The guarantee required by article 19 of the Directive 2015/2302 does not cover this situation, which leaves the passenger unprotected if he only knows about the situation when he arrives at his destination, consequently affecting his economic interests. The same situation can happen with any element that composes the dynamic package other than transport, as long as it is provided by the company that becomes insolvent. The person who acquires a dynamic package facilitated by an OTA can also become completely helpless and is not supplied with any of the services making up the dynamic package due to the insolvency of the trader, which is obliged to provide them, when this is an operator other than that one 26 . In case of acquiring a package travel, this issue is resolved because the agency is responsible for the breach. Moreover, the agency has to replace the service not provided for another because of the insolvency of the trader. If the insolvency situation and their 26 It is paradoxical that the regulation of these new tourism products is detrimental to the protection of the consumer when the doctrine has been advocating to expand this protection, until seeking solutions that address not only the breaches in cases of poor execution of package travel and dynamic packages, but even in order to extend similar solutions (guarantees or insurance) to the provision of individual services. In this regard, its views on this matter have already been expressed by GÓMEZ CALLE, E.: “En torno a una posible revisión del régimen de viaje combinado”, en La revisión de las normas europeas y nacionales de protección de los consumidores: más allá de la Directiva sobre derechos de los consumidores y del Instrumento Opcional sobre un derecho europeo de la compraventa de octubre de 2011, Sergio Cámara Lapuente y Esther Arroyo i Amayuelas (coord.), 2012, pp. 415-416 de lege ferenda he even plans to extend this guarantee to airlines that sell single tickets, so in case of bankruptcy, travellers can have guaranteed repatriation, along with the refund of their tickets, which would have been very useful in cases like Spanair. On our part, we have also defended in GONZÁLEZ CABRERA, I.: “La disminución de la protección del viajero en el transporte aéreo. Un cambio de tendencia. (A propósito de la Propuesta de Reglamento del Parlamento Europeo y del Consejo, modificativo de los Reglamentos CE 261/2004 y 2017/97)”, Revista de derecho del transporte: Terrestre, marítimo, aéreo y multimodal , núm. 15, 2015, p. 97 – 130, the creation of an insurance policy or guarantee fund that could cover, even in the case of transport services acquired directly from the company, without being linked to any other service, among others, the airline’s insolvency situations.