Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MARC MC DONALD 163 Article 3 [5] [b], different websites linked by the facilitator are used to make the separate bookings. It can be expected that facilitators will look for ways of escaping the scope of the two types of LTA’s identified in the definition in Article 3 [5]. In the first limb the obvious features to focus on is the requirement that all bookings are made on a ‘single visit’ to the point of sale. Traders may opt to alter their facilitation methods to ensure the consumer makes more than a single visit to the point of sale for the LTA they wish to make. This could however in some case then bring the facilitator within the second limb of the definition. This possibility is not fully clear because of the vague phrase ‘in a targeted manner’ at the start of Article 3 [5] [b]. However, this writer takes the view that it means a second visit to a different trader’s website. In the second limb the feature in Article 3 [5] [b] which would be targeted in attempts to escape the scope of the definition is the requirement that the second booking take place within 24 hours of the first being confirmed 29 .The assumption underlying the 24 hours stipulation appears to be that the facilitator knows a consumer may find it irksome to go to the second website after a day has passed to make the second booking and complete their holiday plans. It may also have been believed the second booking was more likely to be genuinely part of the same holiday or trip if it was made soon after the first, say inside 24 hours, and thus, one speculates, a potential competitor with an organiser’s package. However it seems quite impractical to expect the consumer to wait 24 hours before going back the second time to the computer to complete all the bookings for their holiday or trip. Unless perhaps the facilitator offered a generous discount to do so and, if the discount is generous enough and the facilitator does not hide why it’s offering it, it may also be that the contract term by which it does this will not offend unfair contract terms law, though this remains to be seen. The main drawback with this strategy is a practical one. The average consumer is only likely to be willing to wait 24 hours without a formal confirmation of the first booking if assured the first booking is definite. It remains to be seen whether it’s possible to give a definite assurance without it being treated as a confirmation of the booking. 29 It would have been easier to avoid the definition under the draft text in the EU Commission’s Proposal for the new Directive – COM[2013], Article 3 [5] [ b]. That stated “at the latest when the booking of the first service is confirmed”. This would have meant the security obligation could potentially have been avoided by a contract term in the contract between airline and consumer saying in effect the moment of confirmation of the flight booking will be, say, five minutes after the second booking is made. The limit of 24 hours was presumably designed to discourage an easy evasion of the definition.