Collective Commentary about the New Package Travel Directive

168 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE stated the correct reason for the measure and could infringe the principle that a statement of reasons must be clear and unequivocal. The second reason given in Para 14 above, to protect consumers, also gives rise to concerns that it is not an accurate statement of the reason for Article 19 [1], though in the end these concerns might not be strong enough to invalidate the reason. It will be recalled in the discussion in Part 3 that airlines are not subject to any insolvency security obligation. Directive 2015/2302 treats LTA- -facilitators the same as organisers, but not the same as airlines for the same key risk of insolvency, the need to repatriate consumers stranded away from home. This might imply that protecting consumers is not the real reason for Article 19 and that there is some other one. Whether it is, is considered in the discussion below on compliance with the general principle of equal treatment. One additional point before moving on to that other discussion: in this writer’s view it could reinforce the possibility that the protection of consumers might not have been the real reason for extending the insolvency security obligation to facilitators of LTA’s. It is embedded in the very architecture of Directive 2015/2302 itself and it is this. The performances liability parts of the Directive [which is not discussed at all in this paper] are not applied to facilitators, but are applied to organisers. This is odd. Why is this? If both are comparable as regards the risk of insolvency why aren’t they comparable as regards performance? The difference, in this writer’s view, can only be explained by the EU law-maker accepting that facilitators are not the same as organisers. They do not perform the same role in an LTA as organisers do in a package. And if they differ in that crucial role this raises the question whether the risk of insolvency is the same. And it is risk which is the crucial matter here, not consequence, even though consequence is what affects consumers. Risk and consequence are not the same thing. It can be strongly argued that the risk of facilitator insolvency is much less because they do not make contracts with foreign service suppliers in the same way as organisers do and they typically do not take on the same financial exposure as organisers do. Additionally, often the facilitation of LTA’s is not the facilitator’s main business. So, the risk of insolvency is arguably far from being comparable with an organiser’s. So why treat them the same? And if the answer is because the consequences of insolvency are the same then why aren’t airlines, where the consequences are also the same, subjected to the same security obligation?