Collective Commentary about the New Package Travel Directive

ARTICLE 5 | JOSEP MARIA BECH SERRAT 225 provided that “in the light of new communication technologies, which easily allow updates, there is no longer any need to lay down specific rules on brochures, while it is appropriate to ensure that, changes to pre-contractual information are communicated to the traveller. It should always be possible to make changes to pre-contractual information [including pre-contractual information posted on the organiser’s website] where expressly agreed by both parties to the package travel contract” 42 . Changes to the agreed upon travel products before performance are frequent and, in accordance with the new Package Travel Directive, new technologies will allow the industry to update the pre-contractual information easily and at a low cost. There is a definition of a durable medium in the new PTD (Art. 3, point (11)), but such a durable medium was only required by the new Package Travel Directive with regard to providing the traveller with a “copy or confirmation of the contract” (Art. 7(1) and (3), second paragraph) 43 . The European legislator was very trader-friendly regarding the form the pre- -contractual information which has to be provided, when drafting the wording of Art. 5(1) of the new Package Travel Directive (“[...] shall provide the traveller with the standard information by means of the relevant form as set out in Part A or Part B of Annex I”) and Part A of Annex I (“where the use of hyperlinks is possible”; “to be provided in the form of a hyperlink”). This made it clear that, not only is a durable medium not required, but that also allowing information via a hyperlink will satisfy the requirement. The approach of the new Package Travel Directive was taken while EU Consumer Law is still pending adaptation to recent challenges resulting from the use of new technologies. From the perspective of the digital environment, the most difficult issue is how information via websites should be made available. The CJEU said as much in the Content Services Ltd v Bundesarbeitskammer -case in the context of the old Distance Selling Directive: a website was not a durable medium, in principle, because information stored could be modified at any time and therefore the unchanged reproduction of that information could not be guaranteed. However, the CJEUdid leave the question open as to whether emerging website designs (“sophisticated websites”) might be considered as a durable medium 44 . In the same case, the CJEU also held in that allowing a consumer to 42 Cf. proposal for a new PTD, recital (23). 43 See my comments on Art. 7(1) and (3). 44 C-49/11 Content Services Ltd v Bundesarbeitskammer, ECLI:EU:C:2012:419, paras. 47-49. Howells, Twigg-Flesner and Wilhelmsson, Rethinking EU Consumer Law , cit., p. 107, refers to both websites and emails, since the emails are frequently stored on remote services and no longer downloaded onto the consumer’s hard-drive.