Collective Commentary about the New Package Travel Directive

ARTICLE 13 | ANTONIA PANIZA FULLANA 311 relationship between the retail agency and the user is the result of a contract of sale, in which the travel agency would act as seller, on their own behalf, of products created by the agency or by a third-party wholesale agency. Such an interpretation is judicially based on the legal description of the activity that the retail agencies carry out on the market as a ‘marketing’ activity, and on the impossibility of classing the activity of operating as an intermediary developed by retail agencies in this type of trade activity as a commission, as there is no true agreement of wills, as the intermediary operation in this scope is the result of a legal regulation imposed by reason of the prohibition on wholesalers to offer their products for sale directly to the consumer. It has also delivered judgement subsequently on other rulings concerning the joint and several liability of the organiser and retailer to the client (Supreme Court Judgement, 21 March 2006) [...]. In any case, this case law, certainly excessively protective of the interests of the traveller, this Court holds that it is preferable to the other that continues to hold ground on criteria of personal and subjective attribution of responsibility...”. It seems clear that joint and several liability benefits the traveller and this is a highly important question in a rule, which, among other aspects, covers an important area in protecting the user of tourist services that had remained outside of Directive 2011/83/EU of the European Parliament and the Council of 25 October 2001, on consumer rights 4 . However, it also needs to be noted that doubts arise regarding the regulation set out in the new Directive as to whether it was truly designed for this joint and several liability of organisers and retailers, or rather for the liability of the organiser, and in certain matters that of both parties, and in others that of the retailer or, in a broader sense, that of the trader. In case of Spain, the Directive 2015/2302 has been implemented by the modification of the Consumer Protection Act. Package travel and linked travel arrangements are regulated in the Consumer Protection Act (Real Decreto-ley 23/2018, de 21 de diciembre) in the articles 150 to 170. In the case of responsibility for the performance of the contract it establishes that: organisers and retailers are responsible for the performance of the services provided in the contract. In France, the article 211-16-I establishes the liability of the “trader” in case of non-performance of the contract: “A trader that sells a holiday package referred to in Article L. 211-1(I) (1) shall be automatically liable for the performance of the 4 According to article 3.3, the Directive will not apply to contracts: “g) which fall within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours” .