Collective Commentary about the New Package Travel Directive

318 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE the travellers’ effective and prompt repatriation in the event of insolvency” 5 . The Directive refers to the trader who facilitates linked travel arrangements, not to organisers and retailers. From the outset, it seems that these traders that facilitate these services act as mere intermediaries, but from the reading of article 19 of the Directive it can be gathered that their status does not exactly match that of an intermediary of individual services. Article 19 itself sets out a series of obligations, one regarding information: before the traveller is bound by any contract leading to the creation of a linked travel arrangement, the trader shall state in a clear, comprehensible and prominent manner: that the traveller will not benefit from any of the rights applying exclusively to packages and that each service provider will be solely responsible for the proper contractual performance of his service (which would occur in the case of procuring individual services), and, on the other hand, that the traveller will benefit from insolvency protection in accordance with paragraph 1. As a consequence of the non-performance of the duties assigned by this article, the rights established in articles 9 and 12 and chapter IV will apply with regard to the travel services that form part of the linked travel arrangement. A notable new element in this regulation is the provision of protection against insolvency of travellers who procure linked travel arrangements, an obligation that shall be undertaken by the trader who facilitates these services. Although it is a fundamental rule in consumer and user protection in this scope, and for travellers in the sense in which they are defined by the Directive, which is to be applauded, fromthe position of traders it forces us to reconsider their classification as a simple intermediary. It seems that the Directive would place them in an intermediate position between the provider of individual services and the package travel organiser. The grounds seem clear, the growth in procuring contracts of this type of services, above all in the electronic procurement of tourist services, necessarily required, and this I believe has been one of the key points in the new regulation, providing security for the traveller in contracts that any average consumer may be confused with the procurement of a package. 5 The Explanatory Statement of the proposed Directive states that: “Directive 90/314/EEC created a general obligation for ‘the organiser and/or retailer’ to provide insolvency protection so as to ensure the repatriation of passengers and the refund of advance payments in the event of insolvency. Due to different legal solutions chosen by the Member States, this often led to duplication of costs for organisers and retailers. According to Article 15 of this proposal, only package organisers and retailers who facilitate the purchase of ‘assisted travel arrangements’ are subject to this obligation. At the same time, it lays down more specific criteria on the effectiveness and the scope of the required protection”.