Collective Commentary about the New Package Travel Directive

ARTICLE 7 | JOSEP MARIA BECH SERRAT 237 one of the main issues for consumers in cross-border contracts, it would certainly go too far to prescribe any particular language for the contract or to make the languages of the consumer’s home country mandatory 8 . The transparency requirement is very important in EU Consumer Law, particularly in the field of unfair contract terms 9 . Most information will be of contractual character and the explicit requirement to provide package travel contracts in plain and intelligible language and to be legible, will be applicable to contract terms, i.e. including pre-contractual information which forms an integral part of the package travel contract and was provided to the traveller pursuant to points (a), (c), (d), (e) and (g) of the first subparagraph of Art. 5(1), in accordance with the first sentence of Art. 6(1) of the new Package Travel Directive. The use of standard terms can be seen as a particular problem when it comes to information provision. Having read the standard terms is generally not required for these to become a binding part of the contract, but national Contract Law has specific transparency requirements and there are some differences between the EU Member States 10 . In this context, the CJEU has held that this requirement is to be understood in a broad sense and that it is not limited to whether or not a contract term is “grammatically intelligible” for the consumer. Rather, a consumer must be “in a position to evaluate, on the basis of clear, intelligible criteria, the economic consequences for him which derive from it” 11 . If the same approach is applied to contractual information duties, as provided in the new Package Travel Directive, it will make these duties even more onerous, because it will be necessary to provide additional clarification in respect of some of the items of information 12 . Yet uncertainty will also arise regarding (1) what 8 However, another opinion considers that some regulation on the issue is needed and the traveller ought to have the chance to choose the language with which he is most familiar. See Annette Nordhausen Scholes, “Information Requirements”, in Geraint Howells and Reiner Schulze (Eds.), Modernising and Harmonising Consumer Contract Law , Sellier, Munchen, 2009, 213 -236, p. 231, regarding the silence of the proposal for a Consumer Rights Directive; Cf. Arts. 4(3) and 5(1) of the Timeshare Directive. 9 As is known, the transparency requirement was incorporated into the fairness test set out in Article 3(1) of the Unfair Contract Terms Directive 93/13/EEC ( OJ 1993 L 95/29) (hereafter the UCTD). Ibid ., pp. 234-235. Nordhausen Scholes questioned whether “contract terms” are the same as information becoming “integral part” of the contract for the purpose of transparency requirements in the light of the proposal for a Consumer Rights Directive. 10 Schaub, “How to Make the Best of Mandatory Information Requirements in Consumer Law”, cit., pp. 33-35. 11 See the interpretation of Art. 4(2) UCTD in C-26/13 Árpád Kásler, Hajnalha Káslerné Rábai v OTP Jelzálogbank Zrt, ECLI:EU:C:2014:282, para. 75. 12 Similarly, Geraint Howells, Christian Twigg-Flesner and Thomas Wilhelmsson, Rethinking EU Consumer Law , Routledge, London and New York, 2018, 94 -128, p. 110, regarding the Consumer Rights Directive.