Collective Commentary about the New Package Travel Directive

ARTICLE 9 | SARA D’URSO 247 by Directive 90/314/EEC, increasing transparency and strengthening legal certainty for travellers 3 and professionals 4 . The intervention was inevitable, seeing as with a growing frequency in current negotiations via the web, the traveller is the one who selects the services of his own package under the guidance of virtual operators, but believing he’s acting with complete autonomy and freedom of negotiation, considering that the pre- -selection activities carried out by professionals aren’t always perceptible 5 . This is probably the reason why the Directive does not have an “open” defining category, but detailed cases, for some aspects, debatable 6 , which shows the desire to include in the applicable discipline as many hypotheses as possible, without giving space to potential ambiguous behaviour 7 . The legislator opts, coherently, for one directive that aims to ensure the protection of travellers and the development of the market through a transition between minimum harmonization and strong harmonization. In fact, on the 3 See the 7 th whereas: “The majority of travellers buying packages or linked travel arrangements are consumers within the meaning of Union consumer law. At the same time, it is not always easy to distinguish between consumers and representatives of small businesses or professionals who book trips related to their business or profession through the same booking channels as consumers. Such travellers often require a similar level of protection. ( omissis ) Therefore, this Directive should apply to business travellers, including members of liberal professions, or self- -employed or other natural persons, where they do not make travel arrangements on the basis of a general agreement. In order to avoid confusion with the definition of the term ‘consumer’ used in other Union legislation, persons protected under this Directive should be referred to as ‘travellers ’ ”. About the extension of the categories of people protected by the European legislation, see Torres, A new paradigm in the protection of traveller, in Aa. Vv. The new package travel directive , ed. by Franceschelli – Morandi – Torres, Estoril, 2017, p. 319. 4 Art.1, Subject matter: “ the purpose of this Directive is to contribute to the proper functioning of the internal market and to the achievement for a high and as uniform as possible level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States in respect of contracts between travellers and linked travel arrangements ”. 5 This is different from the case of the “tailor-made” package, which had already requested the intervention of the Court of Justice. In fact, the Court of Justice of the European Community has already expressed its support for the inclusion of the scope of the previous regulation of tailor-made packages. CE 30 April 2002, C-400/00, in Dir. mar., 2004, with comment by Galatini, Estensione della nozione comunitaria di pacchetti turistici a servizi singoli assemblati dall’intermediario di viaggio su indicazione della clientela: l’intermediario diventa quindi sempre organizzatore? (Extension of the Community concept of tourist packages to individual services assembled by the travel agent on the indication of the client: does the intermediary always become an organiser?). On the issue, see also Claroni, Osservazioni in ordine ai pacchetti turistici, con particolare riferimento a quelli predisposti su misura (Observations regarding the tourist packages, with particular reference to those prepared to measure) , in Dir. trasp., 2003, p. 89. 6 See supra Franceschelli, Commentary on article 3. 7 See 2nd whereas: “… since the adoption of Directive 90/314/EEC, in addition to traditional distribution chains, the internet has become an increasingly important medium through which travel services are offered or sold. Travel services are not only combined in the form of traditional pre-arranged packages, but are often combined in a customised way. Many of those combinations of travel services are either in a legal ‘grey zone’ or are clearly not covered by Directive 90/314/ EEC. This Directive aims to adapt the scope of protection to take account of those developments, to enhance transparency, and to increase legal certainty for travellers and traders ”.