Collective Commentary about the New Package Travel Directive

ARTICLE 15 | ANDREJ MIĆOVIĆ 363 clearest example of a “retailer” is the travel agent, but, depending on the facts of a given case, there are also other examples of persons who may be regarded as regulated retailers: magazines and newspapers promoting or advertising holidays; Internet site hosts; credit and charge card companies promoting travel offers; any social group which promotes travel arrangements to its members; an individual who persuades a group of friends to embark on, or even to consider, a package tour selected by that individual 7 . CONTEXT In order to facilitate the performance of the contract, traveller and organiser have a general duty to co-operate. In accordance with Art. 15. PTD, the traveller will fulfil his obligation to co-operate by contacting the organiser directly or indirectly through the retailer, since the retailer is obliged to forward the traveller’s messages, requests or complaints to the organiser without undue delay. The receipt of the messages, requests or complaints by the retailer shall be considered as receipt by the organiser. Therefore, in a broader sense, the retailer has the duty to co-operate with both traveller and organiser. The duty to co-operate is justified by special circumstances, such as where the debtor cannot assess non-performance by itself because of geographical distance, i.e., the organiser in package travel cases is not, generally, where the obligation is to be performed and, therefore, may not be aware of a possible non-performance 8 . Without co-operation between the parties, performance of many obligations would be difficult or even impossible. The duty to co-operate is, in package travel cases, complemented by the obligation of a retailer to facilitate communication between the contract parties and contribute to the proper performance of the contract by forwarding traveller’s messages, requests or complaints to the organiser without undue delay, regardless of his liability in concreto. The traveller is required to inform the organiser without undue delay of any lack of conformity which he perceives during the performance of the package 7 Chapman, M., Prager, S., Harding, J., Saggerson on Travel Law and Litigation , Wildy, Simmonds & Hill Publishing, 6 th ed., London, 2017, pp. 72-73. 8 Aubert de Vimcelles, C., Machnikowski, P., Pisuliński, J., Rochfeld, J., Szpunar, M., Zoll, F., Performance of Obligations , in: Principles of the Existing EC Contract Law (Acquis Principles), Contract II, General Provisions, Delivery of Goods, Package Travel and Payment Services, Sellier, European Law Publishers, Munich, 2009, pp. 354-355.