Collective Commentary about the New Package Travel Directive

204 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE precisely because of the risk of distortions, contrast with the effectiveness of the Community regulations that can ensure the unification. The use of rules for regulating different aspects of private law in the Community context has been very limited, with significant exceptions in certain matters like industrial property right, companies, private international law, insurance contracts, consumer contracts and agency contracts. The preferential use of directives in private law helps Member States keep a certain degree of autonomy and flexibility. However, there is a trend in the EU towards the replacement of the minimum harmonisation , traditionally used in the area of consumer protection, by the maximum harmonisation as observed in the Directive on unfair commercial practices of 2005 3 . This evolution is not just a technical option, but it also has significant implications of legislative policy and can face reluctance from Member States. When Member States are allowed to apply additional restrictions, as it happens in the case of minimum harmonisation, there is the possibility of coexistence of regimes with different levels of protection. When harmonisation is full or maximum, the coexistence is not possible, a fact causing difficulties in case there are significant differences among national laws. The legal grounds for the doctrine of maximum harmonisation is article 114 of the Treaty on the Functioning of the European Union (TFEU) that provides different measures regarding the approximation of laws, regulations or administrative provisions of the Member States aimed at the establishment and functioning of the internal market. Maximum harmonisation considering health, safety, environmental protection and consumer protection is justified by a “high level of protection, taking account in particular of any new development based on scientific facts”. Regarding consumers, the Communication from the Commission to the Council and the European Parliament on European contract law 4 marks the beginning of the movement of maximum harmonisation that has been reflected in some directives like: 3 Directive 2005/29/EC of the European Parliament and the Council, of 11 May 2005, concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No. 2006/2004 of the European Parliament and of the Council (“Directive on unfair commercial practices”) Directive 2005/29/CE of 11 May 2005. OJEU L149/22. 4 COM (2001)398 final – OJEU No. 255 of 13 September 2001.