Collective Commentary about the New Package Travel Directive

ARTICLE 13 | ANTONIA PANIZA FULLANA 319 Therefore, it has opted for duties incumbent upon the trader to provide information that the contract being concluded is not a package. Traveller protection was clearly set out in this point. The traveller will seek to protect the appearance -what does any average consumer think he is procuring in each case? With the Directive in the hand and as has been stated, it is sometimes difficult to know at first glance, such as in article 3.2 and 3.5, which respective define packages procured online and linked travel arrangements, which is corroborated with the requirement to provide the consumer with clear information as to the nature of the contract being concluded. Would this need to be explained if it were clearly defined? Another problem seems to arise: it is the trader “who facilitates” that must inform as to the nature of the contract being concluded, for whom the linked travel arrangement regime is much more favourable than that of the package, which is why assurance is necessary that the contract really is of the kind purported. The danger created seems to have been already taken into account by the European legislator, as recital 16 of the Directive establishes that: “A trader’s declaration as to the legal nature of the travel product being marketed should correspond to the true legal nature of the product concerned”. In the case of online contracts, we could analyse these tourism traders who facilitate linked travel arrangements as providers of services from the information society, with recourse to the Information Society and Electronic Commerce Services Act. First of all, article 13 of this Act establishes that these information society service providers are subject to civil, criminal and administrative liability as provided in law, the provisions of this Act notwithstanding, so that from the outset applying the general regime of responsibility as provided for in our law system is not ruled out. With regard to intermediary services, the Information Society and Electronic Commerce Services Act establishes a regime of liability in which the intermediary will only be responsible for the content if he has effective knowledge of that content. In this case, it occurs that the regime applied by the Directive also does not match that of intermediate information society service providers.