Collective Commentary about the New Package Travel Directive

220 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE trader is considered a means of promoting rational consumer decisions. Information obligations on traders are seen as an instrument in fostering competition and reducing legal barriers to cross-border trade 16 . The basic premise of this approach is that information asymmetries may eventually result in market failure, so that the information paradigm resonates with very different ideologies, i.e. it fits in well with the idea of building a single market in the EU. Mandatory disclosures have proliferated over the past decades in the European Consumer Law 17 , as they have the advantage of being one of the least intrusive consumer protection instruments. The approach involves only a small deviation from that of the traditional freedom of contract and therefore provokes relatively little controversy in the law-making process 18 . However, in recent years, concerns over the effectiveness of disclosure have grown in the EU. An increasing number of scholars argue that the current regime of disclosures mainly produces information overload and fails to inform market participants adequately 19 . Indeed, the consumer seems to be confused rather than reassured by the different information that must be made available to him 20 . Instead of decreasing information asymmetry, regulation leads to an overload of information and merely creates the illusion of improvement in the consumers’ situation 21 . The traditional information model is called into question from two different angles. Firstly, some of the limitations of the information-based approach have been identified by a growing body of research from behavioural economics, cognitive psychology and neuroscience: it has been argued that the information requirements are not effective because the information is not read by the consumer and, if it is read, the consumer may either not be willing or unable to process it in a manner that is useful to him at the time he is provided with such 16 For an overview of the role of European Union law and EU Directives that use information obligations, see Peter Root, “Information obligations and withdrawal rights”, in Christian Twigg-Flesner (Ed.), The Cambridge Companion to European Union Private Law , Cambridge University Press, Cambridge, 2010, 187-200, pp. 188-189. 17 Compare to Art. 4(1) of Doorstep Selling Directive 85/577. 18 Christoph Busch, “The future of pre-contractual information duties: from behavioural insights to big data”, in Christian Twigg-Flesner (Ed.), Research Handbook on EU Consumer and Contract Law , Edward Elgar, Cheltenham and Northampton, 2016, 221-240, pp. 222-225. 19 Philipp Hacker, ‘Personalizing EU Private Law: From Disclosures to Nudges and Mandates’, European Review of Private Law , 3-2017, 651–678, p. 667. 20 Regarding EU Consumer Law, Annette Nordhausen Scholes, “Information Requirements”, in Geraint Howells and Reiner Schulze (Eds.), Modernising and Harmonising Consumer Contract Law , Sellier, München, 2009, 213-236, p. 217. 21 Katarzyna Poludniak-Gierz, ‘Personalization of Information Duties Challenges for Big Data Approach’, European Review of Private Law , 3-2018, p. 299.