Collective Commentary about the New Package Travel Directive

ARTICLE 5 | JOSEP MARIA BECH SERRAT 221 information. Behavioural scientists have found that providing more information does not necessarily prompt better consumer decisions 22 . Indeed, emotions evoked while buying a package holiday play an enormous role and many people do not even make the effort to read disclosed data 23 . Secondly, the entire model of information obligations as a whole was aimed at a particular type of consumer, the so-called average consumer, i.e. a consumer who is both reasonably well-informed and reasonably observant and circumspect. Consumers who actually read the information are likely to be well-educated and possibly those who are less in need of legal protection than less educated consumers. Mandatory information requirements often take no account of cognitive abilities and literacy levels 24 . Therefore, the interests and expectations of those consumers who are less well educated and insensitive to information, and who are unlikely to take a second look at a contract, or who are vulnerable, were not taken into account when drawing up the regulations for pre-contractual obligations, unlike in those for unfair commercial practices 25 . In EU Consumer Law the relevant factors are the personal circumstances of the consumer, the circumstances under which the contract is concluded or the type of contract concluded – or a combination of these factors. The type of contract, a package travel contract, was taken into account so travellers were considered as a group of consumers who are particular vulnerable 26 ; yet the group of travellers deserving additional protection was taken into consideration only in the abstract. The imperfections of the current protective model have inspired a search for an alternative method for regulating information duties. 22 Busch, “The future of pre-contractual information duties: from behavioural insights to big data”, cit., pp. 226-228; Twigg-Flesner and Schulze, “Protecting rational choice: information and the right of withdrawal”, cit., pp. 143-144; Geraint Howells, Christian Twigg-Flesner and Thomas Wilhelmsson, Rethinking EU Consumer Law , Routledge, London and New York, 2018, 94-128, pp. 98-99; Schaub, “How to Make the Best of Mandatory Information Requirements in Consumer Law”, cit., p. 27. 23 Poludniak-Gierz, ‘Personalization of Information Duties Challenges for Big Data Approach’, cit., p. 299. Schaub, “How to Make the Best of Mandatory Information Requirements in Consumer Law”, cit., p. 30. 24 Ibid ., p. 27. 25 Root, “Information obligations and withdrawal rights”, cit., p. 196. Cf. Javier Melgosa Arcos, “The protection of tourists in Directive 2015/2302/ (EU) of 25 November on package travel and linked travel arrangements”, in Vicenzo Franceschelli, Francesco Morandi and Carlos Torres (Eds.), The New Package Travel Directive , ESHTE/INATEL, Estoril, 2017, 39-70, p. 56. 26 The nature of a transaction puts the traveller at a significant information disadvantage, so EU Law imposes a pre-contractual information duty. Twigg-Flesner and Schulze, “Protecting rational choice: information and the right of withdrawal”, cit. pp. 135-136. Cf. Busch, “The future of pre-contractual information duties: from behavioural insights to big data”, cit., p. 225.