Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MARC MC DONALD 167 It was noted in Part 2 that during the consultation phase various stakeholders may have been motivated by a desire to level the playing field or to remove market distortions. These reasons assume that packages and LTA’s compete in the same holiday market, that the regulatory costs of operating in that market should not be distorted by legislation imposing a cost on one and not on the other, that any new arrival should bear the costs imposed on existing operators, and that this could be done regardless of any evaluation of risks posed by, the new operators in the overall holiday market. In response to this kind of argument, the operators of the new technologies could, and no doubt did, argue they have done nothing wrong to warrant the cost of holding a security being imposed on them, nothing illegal. They have simply exploited new technology to open up new sales channel for selling trips and holidays. Nor, for that matter, have organisers selling packages done anything wrong. They have also complied with the law. All that has happened, that this writer can see, is that the existing law forces existing operators to take out a security guarantee and does not do the same for supposed new competitors. With this brief analysis in mind, let’s examine the reasons given by the EU law-maker for Article 19 [1]. Para 14 of the Preamble to Directive 2015/2302 states: “In order to ensure fair competition and to protect travellers, the obligation to provide sufficient evidence of security … should also apply to linked travel arrangement.” 35 . Fair competition is thus a key reason. In the present context, this must be understood as meaning levelling the playing field or removing market distortions. In theory, it could also mean that one competitor has acted unlawfully by engaging in anti-competitive acts, but as we’ve seen that is not the case here. Neither organisers nor LTA-facilitators have done anything illegal or unfairly anti-competitive. If there is any unfairness that motivated the EU law-maker it lies with the 1990 Directive. The evolution of the market has resulted in the 1990 Directive, not imposing unfair competition, but potentially imposing unequal treatment on equally positioned entities, assuming organisers and LTA- -facilitators compete in the same market. The correct statement of the reason should therefore have read as the promotion of equality or equal treatment. It is therefore arguable that in citing a reason for Article 19 [1] which is not accurate Directive 2015/2302 has not 35 Para 14 of the Preamble of the text of the draft proposed by the EU Commission is practically identical.