Collective Commentary about the New Package Travel Directive

ARTICLE 3 | MARC MC DONALD 179 mean they are not prohibited, though if they are imposed their size will be subject to the overarching aim of the Directive to ensuring the ‘effectiveness’ of insolvency protection 52 . In other words, if the size of an application charge for a refund would deter claims, the charge breaches the Directive. This probably means charges must not be any more than minimal. The first challenge facing the consumer of an insolvent organiser/facilitator will be to contact the entity in charge of the insolvency security and lodge a claim. Article 5 [1] of the Directive very usefully obliges organisers to provide standard information about the Directive’s provisions in the form set out in Annex I. The relevant part of Form A in Annex I states: “XY has taken out insolvency protection with YZ [the entity in charge of the insolvency protection, e.g. a guarantee fund or an insurance company]. Travellers may contact this entity or, where applicable, the competent authority [contact details, including name, geographic address, email and telephone number] if services are denied because of XY’s insolvency.”. The competent authority or regulator will be in the organiser’s MS of establishment, not in the consumer’s MS of residence or where the package was sold. For consumers of LTA’s the equivalent insolvency information must also be provided by the facilitator, under Article 19 [2] and Annex II, before the consumer is bound by a contract leading to an LTA. The Directive does not as such provide a consumer with a legal right to make a claim against the security guarantee. The whole structure of the law in this area is however predicated on the notion that this should not be necessary. Yet, Para 39 of the Preamble to Directive 2015/2032 states: “Member States should be free to require that organisers provide travellers with a certificate documenting a direr entitlement against the provider of the insolvency protection.”. This is obviously a response to delays in consumers getting refunds. It will be interesting to see how many MS avail of this freedom. In general the only causes of delay should be the regulator establishing for certain that the organiser is unable to secure contract performance because it can’t pay its bills and in accessing the organiser’s data to identify the contracts, consumers and costs. 52 Title of Article 17.