Collective Commentary about the New Package Travel Directive

362 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE national law (Recital 24 and Art. 15, para. 1 PTD) 3 . From the consumer perspective, the introduction of this rule aims to increase the level of consumer protection and it is justified by various practical reasons: consumers are often confused as to who is who in the contractual chain, especially in a juncture where a significant number of traders have entered the market over the last few years (e.g. airlines, online platforms); many consumers identify the seller as being the party whom they should refer to in case of problems 4 . These are underlying reasons not only for placing the liability on the retailer in certain Member States, but also for providing the traveller with the possibility to contact the organiser via the retailer, regardless of the retailer’s liability for the performance of the package in concreto. However, serious concerns have been raised by some consumer associations regarding the effectiveness of this rule in cases where liability is not placed on the retailer or both on the organiser and retailer. For example, The European Consumer Organisation (BEUC) argues that allowing the consumer to contact the organiser through the retailer would not ensure transparency and could result in adding a layer of complexity, becoming a source of disagreement between the retailer and the organiser, especially in the case of cross-border purchases (i.e. when the organiser is not established in the country of residence of the consumer) where liability is placed only on one party (organiser) 5 . NOTION OF RETAILER According to the Art. 3 (9) PTD, ‘retailer’ means a trader 6 other than the organiser who sells or offers for sale packages combined by an organiser. The 3 Article 13 of the PTD places the liability for the performance of the package travel contract, solely on the organiser. Thus the retailer is not liable vis-à-vis the consumer though the consumer would be allowed to send complaints to the organiser through the retailer (Article 15 PTD). However, the current Directive left discretion to Member States to decide who is liable vis-à-vis the consumer, the organiser or both the organiser and retailer. While most of the Member States place liability on the organiser irrespective of whether those services are to be performed by the organiser or by other travel service providers (e.g. Austria, Bulgaria, Croatia, Cyprus, Denmark, Finland, France, Hungary, Ireland, Italy, Estonia, Luxembourg, Netherlands, Poland, Romania, Slovakia, Slovenia, UK), others extend the liability also to the retailer (e.g. Spain, Portugal, Malta). 4 See: REVISION OF THE PACKAGE TRAVEL DIRECTIVE - Commission proposal (COM (2013)512) BEUC Position, p. 22. Available at: https://www.beuc.eu/publications/x2013_082_package_travel_directive.pdf. 5 Ibid, p. 22. 6 ‘Trader’ means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive, whether acting in the capacity of organiser, retailer, trader facilitating a linked travel arrangement or as a travel service provider (Art. 3 (7) PTD).