Collective Commentary about the New Package Travel Directive

ARTICLE 13 | ANTONIA PANIZA FULLANA 305 package travel contract. This is a question that will once again lead to discussion in the different States. According to article 13 of Directive 2015/2302: Member States may maintain or introduce in their national law provisions under which the retailer is also responsible for the performance of the package. In that case, the provisions of Article 7 and Chapter III, this Chapter and Chapter V, which are applicable to the organiser, shall also apply mutatis mutandis to the retailer. Recital 22 of the Directive seems to differentiate between the responsibility of the organiser and that of the retailer: “Whether a trader is acting as an organiser for a given package should depend on that trader’s involvement in the creation of the package, and not on how the trader describes his business. When considering whether a trader is an organiser or retailer, it should make no difference whether that trader is acting on the supply side or presents himself as an agent acting for the traveller” . More confusing is the initial part in reference to the subjects: “The main characteristic of a package is that there is one trader responsible as an organiser for the proper performance of the package as a whole. Only in cases where another trader is acting as the organiser of a package should a trader, typically a high street or online travel agent, be able to act as a mere retailer or intermediary and not be liable as an organiser”. Despite the confusion in this recital is, the emphasis seems to be placed on the activities actually carried out by the tourism trader that will determine the role he plays in each of the contracts concluded. According to article 2, section 9, the retailer is “a trader other than the organiser who sells or offers for sale packages combined by an organiser” 2 . The question raised is what the role of the organiser and retailer is in the scope of procuring packages, and secondly, whether the Directive clearly separates between cases in which the organiser should be responsible and those in which the retailer is responsible. Let us now look at the Directive articles that refer to cases of non-performance for packages: • In the case of other terms of the package travel contract being altered (article 11): Member States shall ensure that, before the start of the package, the organiser may not unilaterally change package travel contract terms, except for in a series of situations, and if obliged to do so, a series of obligations are established for the organiser. • In article 12, relating to termination of the package travel contract: The organiser may terminate the package travel contract and provide the traveller with a full refund of any payments made for the package. 2 The Proposal defined retailer as: “an operator other than the organiser who sells or offers for sale packages or facilitates the procurement of travel services which are part of a linked travel arrangement by assisting travellers in concluding separate contracts for travel services with individual service providers” .