Collective Commentary about the New Package Travel Directive

380 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE III. BURDEN OF THE COSTS FOR ASSISTING TRAVELLERS IN DIFFICULTY The Directive determines who, between the organiser or the traveller, shall bear these costs for assistance in case of difficulty during the package holiday. At this stage, it can still be considered that another third party would also be the best placed to bear the costs: the insurer. At first sight, it seems that the insurer’s role in this respect was neglected by the European legislator upon the adoption of the Directive. This can certainly be explained by the fact that the insurance guarantee may be denied, seeing as the risk is not covered with the occurrence of certain events. This will typically be the case under some extraordinary circumstances (war, terrorism, etc.). Thus, the Directive did not apparently wish to add complex insurance issues to the final burden of costs, even if ultimately the insurer (either of the professional or of the traveller) will sometimes cover this and hence avoid discussions, at the time of the request for assistance, regarding possible guarantee exclusions. The issue of costs shall only be examined once the traveller has been assisted and returned home. Moreover, some events which can affect travellers during their package holiday are not necessarily covered by the responsibility of the organiser or the retailer. This will be the case for accident, illness or death which happen outside the scope of performance of the travel package. Nevertheless, as this will be developed hereinafter, the organiser or the retailer still have an obligation to provide assistance, even though they are not responsible for the difficulty undergone by the traveller. A question may arise: was the traveller negligent in refusing to take out insurance to cover specific risks and to obtain an insurer’s assistance? Under these situations, the traveller should normally have been prudent and concluded an insurance before his departure to cover assistance and repatriation, if the risks arose. Evidently, the organiser or retailer should have informed the traveller, before the purchase of the package, of the optional or compulsory insurance to cover such risks 23 . But this is not enough. It stems from the Directive that the organiser or the retailer will not be entitled to refuse assistance on the basis that the travellers declined to take out an insurance policy for assistance and repatriation when they purchased their package holiday. Assistance will have to be provided in any case. 23 This is part of their obligation to inform the travellers under Article 5 (1) (h) of the Directive.