Collective Commentary about the New Package Travel Directive

230 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE on the information that was or was not provided during the pre-contractual stage 8 . Nevertheless, a failure to provide the information required will raise an action for breach of contract even though conformity is not lacking 9 . Likewise, it is uncertain whether the pre-contractual information of binding character is essentialia negotii and therefore false information, or whether a lack of information is hindering the valid formation of the contract. The sanctions will vary significantly between Member States and even within a national legal system. The invalidity of the package travel contract is a possible, albeit rather strict, interpretation. It means that a package travel contract may not be validly concluded at all if the pre-contractual information of binding character is not given, or not given at the correct time or in the correct way 10 . It is also possible to consider the pre-contractual information of binding character as not being essentialia negotii , so that then the contract will be valid. Otherwise, it is argued, there would be no room for the required Contract Law remedies provided in Arts. 12 to 14; and an interpretation of the information obligations as essentialia negotii (and therefore no valid contract in case of non-fulfilment) may also be harsh on the traveller, who relied on the contract and may want to affirm the contract regardless of the information deficit 11 . Other sanctions range from public law sanctions 12 or even criminal law sanctions 13 . Indeed, EUConsumer Law directives do not harmonise general concepts of Contract Law, i.e. good faith, culpa in contrahendo , mistake and misrepresentation, which overlap with information obligations 14 . 8 The exchange of information is also at the heart of the rules on non-conformity in sales law (Art. 2 of the Consumer Sales Directive (CE) 1999/44, OJ 1999 L171/12). Martien Schaub, “How to Make the Best of Mandatory Information Requirements in Consumer Law”, European Review of Private Law , 1 -2017, 25 -44, p. 32. 9 Regarding Art. 6(1) CRD, it was held that a failure to provide such information as required will raise an action for breach of contract. See Geraint Howells, Christian Twigg-Flesner and Thomas Wilhelmsson, Rethinking EU Consumer Law , Routledge, London and New York, 2018, 94 -128, p. 111. 10 For example, in Germany the sanctions range from the invalidity of contracts that are concluded on the basis of insufficient or incorrect information to compensation for damages. 11 Regarding Art. 5(3) and Art 9 of the proposal for a Consumer Rights Directive, Annette Nordhausen Scholes, “Information Requirements”, Geraint Howells and Reiner Schulze (Eds.), Modernising and Harmonising Consumer Contract Law , Sellier, Munchen, 2009, 213-236, p. 223. In that sense, for example, see SAP Barcelona 5.12.2014, where the travel was performed and the contract was not regarded as void despite not being concluded in writing. 12 For example, in the United Kingdom. 13 For example, in Belgium and France. 14 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. 191-200; also Christian Twigg-Flesner and Reiner Schulze, “Protecting rational choice: information and the right of withdrawal”, in Geraint Howells, Ian Ramsay and Thomas Wilhelmsson with David Kraft (Eds.), Handbook of Research on International Consumer Law , Edward Elgar, Cheltenham and Northampton, 2011, 130- 157, p. 141, making a distinction between a situation where a contract was concluded in reliance on the information that was available to a consumer, and where no contract was concluded.