Collective Commentary about the New Package Travel Directive

304 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE including business travellers where they do not make travel arrangements on the basis of a general agreement with an operator specialising in organising business travel.”. In the Directive, traveller “means 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”. The question that then arises is whether it is necessary to be an organiser or even a travel agency in order to offer a travel package for sale. The Directive has opted to answer in the negative, with a very broad consideration established in the scope itself: the Directive applies to “packages offered for sale or sold by traders to travellers” and “to linked travel arrangements facilitated by traders for travellers”. In both cases, as can be seen, these are contracts offered by “traders” in a broad sense of the term. 2. THE GENERAL RULE: ORGANISER LIABILITY A. Responsability of the organiser for the performance of the travel package To begin this section, one must first look at how the Directive defines organiser. According to article 2, section 8 of the proposed Directive, an organiser means: “a trader who combines and sells or offers for sale packages, either directly or through another trader or together with another trader, or the trader who transmits the traveller’s data to another trader in accordance with point (b)(v) of point 2”. This definition also varies from the definition included in the proposed Directive. It is important, with regard to liability, to first analyse the proposed Directive text, in order to appreciate the change made. According to article 11 of the proposed Directive, Member States shall ensure that the organiser is responsible for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers. The organiser must also give assistance to the traveller and guarantee protection against insolvency. According to the Proposal, in general terms, the organiser will be held liable, although in cases where the organiser is established outside the European Union, travellers may call for redress directly from the retailer. The possibility is also provided for the traveller to contact the organiser through the retailer. For the purpose of compliance with time-limits or limitation periods, receipt of the messages, requests or complaints referred to in the first subparagraph by the retailer shall be considered as receipt by the organiser. The text of the Directive keeps some aspects, but also once again introduces doubt as to inclusion of the responsibility of the retailer along with that of the organiser in the event of defective performance or non-performance of the