Collective Commentary about the New Package Travel Directive

170 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE extending the security obligation to facilitators is presumably the protection of consumers of LTA’s against the specific risk of thinking they are protected like consumers of packages, or not knowing that they aren’t, and thus unwittingly exposing themselves to the risk of no facilitator performance liability and no security guarantee in the event of facilitator insolvency 38 . The Directive does two things to address these situations. In Article 19 [2] it compels the display of information in standard formats set out in the Annexes to Directive 2015/2302. This means that before the consumer buys an LTA they will know they are not buying a package and are not protected like the consumer of a package. That could, it would seem, have addressed the problem of ignorance. The consumer who was thinking of buying an LTA could switch to buying a package instead if the lack of insolvency protection was an important matter for them. One might think that would avoid the need to impose an expensive security obligation on LTA-facilitators unless evidence was available to the EU law-maker that says the information notice would not be enough. This writer has not seen any reference to any such evidence. In is thus at least arguable that imposing a security guarantee may be going one step further than it is strictly necessary, but perhaps can be legally justified on the basis that Para 3 of the Directive 2015/2302 aims to provide a high level of consumer protection. 6. WEBSITES – ORGANISER, FACILITATOR OR NEITHER? There is a multitude of ways in which travel and holiday services can be sold online. It is a risky exercise to try to identify which category, organiser or facilitator, a website fits into. However, legislators, regulators and traders all over the EU are currently trying to do this in advance of the transposition deadline of 1 January 2018. Below is this writer’s attempt to identify which category the more common online booking channels fit into. Depending on the category it can be seen whether the trader is subject to both performance and security obligations or only to the latter. Where the trader providing an online booking channel is neither an organiser nor a facilitator, the likelihood is that it’s a travel agent and not subject to the security obligation under the new Directive, though it might be subject to local rules which, for local reasons, require travel agent security, as in Ireland. 38 A fear noted in the EU Commission’s consultation phase, see Part 2 of this paper.