Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MARC MC DONALD 165 insolvency leading to the other service provider not providing the service. Again, whether this is likely will involve balancing the cost and convenience of the technical change against the cost of the security. The emphasis on receiving payments from travellers also highlights a difference in the reach of the new Directive’s obligations on LTA-facilitator’s. Article 19 [1] only applies to facilitators who receive payments from travellers. However, the information notice obligations in Article 19 [2] under which LTA- -consumers must be provided with standard form information set out in Annex II to the effect that they do not enjoy the rights that package users do, but that they do enjoy insolvency protection, apply to all LTA-facilitators and must be complied with before any LTA contracts – or any ‘corresponding offer’ [meaning unclear] – are made. If a trader wished to avoid even these information display obligations it would have to ensure the travel arrangements it was facilitating didn’t come within the definitions in Article 3 [5]. Naturally MS regulators will be suspicious of all attempts to get round Article 19 [1] 31 . They may be sceptical that the longer-than-24 hour gap will always be observed. But configuring internet booking technology to exploit contractual freedom to always decide when a contract will come into existence seems feasible, though regulator surveillance of this would be difficult. MS might also consider other ways to block avoidance strategies. One such strategy might be to rely on the overarching aim of Directive 2015/2302 to ensure the ‘effectiveness’ of the insolvency protection. It might be argued that a national law banning use of contractual freedom to avoid Article 19 would further the effectiveness of the insolvency protection. This would require a national legal measure to be enacted and then challenged before the ECJ. It seems doubtful, maybe not impossible, the ECJ could rule against the strategy by declaring that Article 3 [5] [b] must be read as including a travel arrangement made through linked but separate websites where the second booking was made more than 24 hours after the first is confirmed. On the other hand, it could also perhaps be argued that effectiveness here refers, not to whether the security exists, but to how well it operates when the need to use it arises. Facilitator fees It does not seem the insolvency security obligation arises when, after booking a flight and as part of an LTA, a consumer books and pays the hotel, and later the hotel or hotel booking website pays a ‘click-through’ fee or a percentage of the 31 The Irish regulator is the Commission for Aviation Regulation. See its website at www.aviationreg.ie .