Collective Commentary about the New Package Travel Directive

228 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE 1. THE BINDING CHARACTER OF PRE-CONTRACTUAL INFORMATION The first sentence of Art. 6(1) of the new Package Travel Directive chooses to approximate to Consumer Law by obliging Member States to ensure that some pre-contractual information will form an integral part of the package travel contract, that being, information provided to the traveller pursuant to points (a), (c), (d), (e) and (g) of the first subparagraph of Art. 5(1). Thus, most of the pre-contractual information provided in this subparagraph will have a binding character on the organiser and retailer but not all “the particulars contained in the brochure” as provided in Art. 3 of the old Package Travel Directive. Exceptionally, information on organiser and retailer contact details (point (b)) and passport and visa requirements (point (f )) and insurance (point (h)) will not be binding. If the reason that this information is not binding is founded on the argument that it refers to issues beyond the control of the organiser, the non-binding character of the information regarding the organiser’s contact details is problematic. In any case, in the Ving Sverige -case, the CJEU explicitly stated that the information listed in Article 3 of the old PackageTravel Directive was to be considered as essential information and, therefore, had to be disclosed already at the stage of the invitation to purchase 2 . This implies that also the information as to passport and visa requirements is to be regarded as material information that must be disclosed to the consumer already when the organiser gives the consumer an invitation to purchase. The information on passport and visa requirements may be relevant to the decision of a traveller whether or not to conclude the contract, so the omission of such information constitutes a misleading and, therefore, unfair commercial practice 3 . According to Art. 6(1) of the new PackageTravel Directive, the pre-contractual information shall not be altered “unless the contracting parties expressly agree otherwise”. Allowing changes in the pre-contractual information is commonly accepted in package travels, particularly when they were programmed well in advance. An express agreement will be required between the time the traveller was provided with the information and the conclusion of the contract; and “the organiser and, where applicable, the retailer shall communicate all changes to the 2 C-122/10 Konsumentombudsmannen/Ving Sverige, ECLI:EU:C:2011:299, para. 57. 3 However, an analysis of the online booking procedure of some tour operators shows that before booking, the traveller is made aware of the existence of visa requirements, but not which requirements apply or where to find this information in such a way that compliance with the obligations under the old and the new Package Travel Directives is ensured. See Marco B.M. Loos, “Precontractual information obligations for package travel contracts”, Journal of European Consumer and Market Law , 3 -2016, 124 -130, pp. 127-128.