Collective Commentary about the New Package Travel Directive

158 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE contain any reference to evidence that users of LTA’s suffered financial loss akin to the loss covered by organiser’s insolvency protection . Not that there wasn’t evidence of consumer loss from insolvency. The Commission commissioned a report 14 which showed considerable consumer detriment arising from insolvency connected with ‘dynamic packages’, the older term, and this is referred to in the Commission’s Explanatory Memorandum 15 . However, there is a question whether like was compared with like. The definitions of package and LTA used in the 2015 Directive and in the study are not the same. The former didn’t exist in 2009 and could not have been used in the study. The definition of a dynamic package used in the study 16 is broader than the definition of an LTA. Some arrangements classified as dynamic packages in the study are treated as packages in the 2015 Directive. Further, the idea of consumer detriment used in the study 17 is much wider than the narrow range of consumer loss covered in both the 1990 and 2015 directives which remain the same on this point. Are packages and LTA’s competing products in the same market? The lack of market analysis whether packages and LTA’s always compete, or compete enough to justify a law which assumes they do, is striking. The assumption appears to be that because both serve the holiday market that the products involved must compete with each other. Perhaps they do. Perhaps the assumption is correct. But there are certain features of the type of LTA under discussion here – Article 3 [5] [b], where bookings are made via different points of sale within 24 hours of each other, discussed in more details in Part 4 – which raise the question and which a market analysis would have resolved. It is true they compete in the wide sense that trains and planes on the same route compete or that a cruise ship and a hotel resort compete. But in a more real specific sense it is questionable. There are sub-markets of holiday products with different features within each group and there are some typical points of difference between a holiday based on a package and one based on a LTA. For instance, freedom of choice can be an important difference for consumers. The consumer of an LTA is not limited to the organiser’s selected destinations. There is also greater flexibility regarding the length of the holiday or the place, time of 14 London Economics [2009], A Study on Consumer Detriment Study in the area of Dynamic Packages, Final Report to the EU Commission. 15 Ibid p 3. 16 See London Economics [2009], Executive Summary p i. 17 Ibid p ii.