Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MARC MC DONALD 169 Equal Treatment The ECJ stated what this principle means in ELFAA v Department of Transport: “It is settled case-law that the principle of equal treatment … requires that comparable situations not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified.” 36 . The ostensible aim of Article 19 [1], identified in Para 14 of the Preamble to Directive 2015/2302, is to protect consumers affected by the insolvency of the facilitator of an LTA. As noted above, the consequence, not the risk, of insolvency for consumers is the same whether the arrangement they are under is a package or an LTA. Also, extending the protection to a group of consumers who did not have it before may be seen as offering a high level of consumer protection, as claimed in Para 3 of the Preamble to the Directive. Except for the point already alluded to a number of times, passengers of airlines do not enjoy the same protection of a guarantee fund as consumers of packages and LTA’s do. Might this infringe the equal treatment principle? As outlined in Part 3 above, airlines are being dealt with separately by the EU Commission. The issuer is under active consideration. No law has been proposed but neither has it been ruled out. Does the equal treatment principle apply or not apply in such circumstances? This writer sees no reason why it cannot, especially given that in Para 38 of the Preamble to Directive 2015/2302 the EU law-maker itself connects the two issues by bringing the separate treatment of airlines into the rationale of the Directive. Para 38 refers to the measures the EU Commission said it would take to improve air passenger protection when an airline becomes insolvent. The EU law-maker thus clearly regarded the issues of airline and organiser/facilitator insolvency as of a similar nature. Hence, it would seem the comparison becomes appropriate for the purposes of the equal treatment principle. Drawing on the discussion of statement of reasons above, it is arguable that imposing the security obligation on LTA- -facilitators and not airlines offends the equal treatment guarantee. Proportionality The principle of proportionality requires that legal measures taken by the EU go no further than is necessary to achieve the stated objective 37 . The object in 36 C344/04, ECR –I [2006] 403, Para 95. 37 See Article 5 [1] and [4] of the Treaty establishing the European Union [TEU], Protocol 2 of the TEU, OJ C 326, 26.10.2012.