Collective Commentary about the New Package Travel Directive

164 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE To illustrate how traders may try to escape the definition of an LTA, take two current typical LTA’s. Scenario A within Article 3 [5] [a] – on one visit a consumer books a flight on an airline website and then books and pays separately for car hire from a different page on the same website from the car hire firm as part of the same trip or holiday. Scenario B within Article 3 [5] [b] – on the one occasion [i.e. two visits, one just after the other, to different websites] a consumer books a flight on an airline website and is then directed from there to a separate hotel booking website and makes a separate accommodation booking as part of ‘the same trip or holiday’. Under the new Directive if a facilitator in scenario A wishes to escape Article 3 [5] [a] it will have to ensure it takes two visits to the same website to make the two bookings. Equally, if a facilitator in scenario B wishes to escape Article 3 [5] [b] it will have to ensure the two visits [the first one concluding with a booking which is not confirmed till after 24 hours] are separated in time by at least 24 hours. Will websites be willing to make such changes to avoid the obligation to take out insolvency security? Balancing the cost of making the online changes against the cost of the security, some may decide it is not worth it, while others may decide that it is. Significance of ‘receiving’ Assuming a facilitator, say an airline, cannot change its sales channels as discussed above, it is worth emphasising that it may still be able to reduce the scope and cost of its security by reducing the amount of money for other websites that goes through its hands. Article 19 [1] quoted at the start of this paper, can be briefly recalled: “Member States shall ensure that traders facilitating linked travel arrangements shall provide security for the refund of all payments they receive from travellers …” 30 . Thus, the facilitator only has to take out insolvency protection for payments it receives. If it receives no payments it avoids the security obligation altogether and if it only receives payments for any service it provides itself its security guarantee only has to cover consumer loss arising from its own insolvency. What the airline has to do is ensure that none of, say, the hotel’s payment passes through its hands. Equally, if it receives payments for other services which is part of the LTA it facilitates, its security must cover consumer loss arising from its 30 Emphasis added.