Collective Commentary about the New Package Travel Directive

166 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE consumer payment as a charge or commission to the airline. that should not trigger the insolvency protection. This is because Article 19 [1] makes clear the security obligation only arises for payments received from the consumer. If the facilitator receives no payments at all it will not have to provide any security guarantee against its own insolvency. The logic is clear. Receiving no payment from the consumer means there is no risk that the facilitator’s insolvency will result in the loss of the pre-payment. Members-only websites which offer special travel deals to members may be an example of this. The issue is not addressed specifically in the newDirective, but it would seem that whenmembers pay a fee to become a member that fee is not attributable to any travel offer they may later take up. 5. COMPLIANCE WITH GENERAL PRINCIPLES OF EU LAW All EU legal measures must comply with a variety of general principles of EU law 32 . The ones which seem of most relevance to the extension of the security guarantee to LTA’s in Article 19 [1] of Directive 2015/2302 are stating reasons, equal treatment and proportionality. The views expressed below on compliance are tentative in that each of these principles has a developed jurisprudence which would need the kind of detailed examination beyond the ambition of this paper. Stating reasons According to the EU’s most basic law: “Legal acts shall state the reasons on which they are based…” 33 The ECJ has added that: “the statement of reasons … must show clearly and unequivocally the reasoning of the … authority which adopted the contested measure, so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review…” 34 If the statement of reasons is incorrect or unclear or points to two possible reasons that could make the reason given for the provision a misstatement or equivocal, the measure in question could be invalidated by the ECJ. 32 Article 5 of the consolidated version of the Treaty on European Union [TEU] and Protocol 9 of the consolidated version of the Treaty on the Functioning of the European Union [TFEU], OJ C 202/3, 7.6.2016. See also the Charter of Fundamental Rights of the European Union, OJ C 202/389, 7.6.2016. 33 Article 296, TFEU, supra. 34 ELFAA v Department of Transport, C 344/04, ECR –I [2006]403, para 66.