Collective Commentary about the New Package Travel Directive

ARTICLE 6 | JOSEP MARIA BECH SERRAT 229 pre-contractual information to the traveller in a clear, comprehensible and prominent manner before the conclusion of the package travel contract” (Art. 6(1)) 4 . Unlike in the last paragraph of Art. 3 of the old Package Travel Directive, it was not required that the organiser would reserve that right in the pre- -contractual information and I consider that the omission was reasonable since the other requirements constitute sufficient protection for the traveller. Nevertheless, difficulties will arise for the traveller where no durable medium was used for providing the pre-contractual information and the change is not communicated, despite the burden of proof being shifted to the trader (Art. 8) 5 . 2. SANCTIONS FOR FAILING TO COMPLY WITH INFORMATION REQUIREMENTS The question of sanctions for failing to comply with information requirements was left to domestic law and the remedies were not harmonised. Regarding this, the new Package Travel Directive will not affect national Contract Law such as the rules on the validity, formation or effect of a contract, insofar as aspects of general Contract Law were not regulated in this Directive 6 . Both the meaning of the expression “an integral part of the contract” and the status the information will assume in the contract still remain unclear at EU level. Where the information becomes part of the package travel contract and the contract has been concluded, the binding character should be read in conjunction with the rules on non-conformity. The organiser must provide services in conformity with the package travel contract. If travel services do not live up to a traveller’s reasonable expectations, this will constitute a breach in contract, giving rise to the relevant remedies provided in Arts. 12 to 14 of the new Package Travel Directive, i.e. a right to cure, termination of the contract, price reduction and/or compensation for damages 7 . The traveller’s reasonable expectations will be based 4 It seems that the communication requirement will be also applicable to information provided to the traveller pursuant to points (b), (f) and (h) (“all changes to the pre-contractual information”). 5 See my comments on Art. 5 regarding the fragile medium for providing pre-contractual information. See also my comments on Art. 8. 6 Art. 2(3) of the new Package Travel Directive. See also Recital (20). 7 The same approach was adopted in Art. II.-3:109(2) of the Draft Common Frame of Reference (DCFR) (“If a business has failed to comply with any duty imposed by the preceding Articles of this Section [“Information duties”] and a contract has been concluded, the business has such obligations under the contract as the other party has reasonably expected as a consequence of the absence or incorrectness of the information. Remedies provided under Book III, Chapter 3 [“Remedies for non-performance”] apply to non-performance of these obligations”).