Collective Commentary about the New Package Travel Directive

378 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE II. CONDITIONS AND EXTENT OF THE OBLIGATION TO PROVIDE ASSISTANCE The organisers, as well as the retailers under French law 18 , have to provide assistance to the travellers in difficulty in two cases: (i) under unavoidable and extraordinary circumstances as set out in Article 13(7) of the Directive and (ii) at the request of the traveller. These provisions were transposed under French law in Articles L.211-17-1 and R.211-11 of the tourism code. These two articles are the reproduction of the dispositions of the Directive 19 . The first hypothesis, i.e. under unavoidable and extraordinary circumstances, should not raise any particular difficulty. Indeed, the travel agents always had a duty, at least since the adoption of the first travel directive, to assist their clients despite a force majeure case and to offer them either alternative arrangements to continue the package, when possible, or repatriation. In such a situation, a French travel agent has been able to, after a terrorist attack in Luxor, decide to continue the cruise on the Nile, as it was possible to maintain all the travel services included in the package without particular danger for the travellers. Nevertheless, the tourists claimed damages for moral prejudice. Such a prejudice did not result from the attack itself – the court did not find this was a force majeure case in any event, as the travel services were fully complied with – but in the fact that the travel agent offered them assistance and repatriation after the attack against signature of a waiver of responsibility – which the travellers refused 20 . This illustrates how professionals have to be prudent when offering assistance and should not withdraw an offer of assistance without due consideration, even if the force majeure (or the now unavoidable and extraordinary circumstances) is not fully established. In the second hypothesis, it is considered that the traveller may be in need of assistance, without any fault from the organiser or in absence of any unavoidable and extraordinary circumstances: this will be the case when the traveller is suddenly ill or has his travel documents stolen or lost, etc. The obligation to provide assistance will fully apply under these circumstances. Failure to perform 18 Articles 13 (1) of the Directive allows extension of obligations to retailer. The Order n°2017-1717 of 20 December 2017, which transposed in France the Directive and accordingly amended the French tourism code, makes the provisions applicable also to the retailer. 19 The Directive is a “full harmonisation directive” and the member States shall not diverge from its dispositions upon transposition – Article 4. 20 Cass. Civ. 1, 16 November 2004, n°02-17381, Bull. civ. 2004 I n°277 p232.