Collective Commentary about the New Package Travel Directive

ARTICLE 13 | ANTONIA PANIZA FULLANA 303 Faced with this issue, the questions that arise, among others, are as follows: Does the new regulatory text guarantee dynamic package users’ rights? Is the necessary legal certainty achieved for organisers, retailers and consumers? The liability regime changes with regard to the previous regulation: for packages, the organiser is liable (a liability that Member States may extend to the retailer); for individual services, it naturally lies with the service provider. However, it seems that the Directive adds an intermediate figure with a special liability regime, which does not reach that of the organiser, but which leaves the consumer more protected than in the case of individual services. In general terms, and outlining the legal relationships between the different parties to these contracts, we always have a person placed between the procurer of the tourist service and the service provider, or rather, the tourist services contracted. Therefore, the boundaries of the legal situation need to be established for the person mediating between parties, as well as what their involvement and liability in the contract or contracts concluded. The questions that also need to be considered are who the organiser and retailer are and what the legal nature of these particular figures is. But this question is resolved first in the Proposal and later in the Directive; the fact that the organiser acts as such depends on their participation in preparing the travel arrangements, not the name under which they carry out their activity. However, as stated, important changes have occurred from the text of the Proposal to that of the Directive. Reference will now be made to the definitions in the proposed Directive that have been given a different consideration in the Directive. The definition of operator has disappeared in the finally approved text, and in its place a new figure appears: that of the trader. The operator was defined very broadly as any person acting with purposes relating to his trade, business, craft or profession. The organiser was defined as an operator that combines and sells or offers travel packages, either directly, or through or together with another operator; when more than one operator meet any of the criteria for all of them to be so, all operators will be considered as organisers, unless one of them is designated as organiser and the traveller is informed accordingly. And the retailer was an operator rather than the organiser who sells or offers for sale packages or facilitates the procurement of travel services which are part of an assisted travel arrangement by assisting travellers in concluding separate contracts for travel services with individual service providers. This definition has also changed in the final text. And the Proposal defined traveller as: “any person who is seeking to conclude a contract, or is entitled to travel on the basis of a contract concluded, within the scope of this Directive,