Collective Commentary about the New Package Travel Directive

ARTICLE 16 | VALÉRIE AUGROS 381 Generally, the organiser shall support the cost for assisting the travellers in difficulty, including in the presence of unavoidable and extraordinary circumstances 24 . The cost comprises expenses for accommodation. However, this cost has a cap 25 . Indeed, it is expressly mentioned that it should not exceed three nights, whenever it is not possible to ensure the travellers’ return 26 . Before the adoption of this Directive, travel agents had, for instance, to support all costs incurred by clients who were unable to return from their vacation because of the eruption of the Eyjafjöll volcano. At that time, the European airspace remained closed for several days. A family who booked a package to Greece was not able to return to Paris at the agreed date. They had to arrange further accommodation at their hotel in Greece for two additional days. They were finally offered air transport to Vienna but no other alternative transport to Paris, which they arranged on their own. The French court considered that this was a force majeure case and no compensation was due for this. However, the travel agent had to offer assistance in the form of making alternative arrangements for their accommodation at the place of destination and then for their return, when this became possible. The travel agent was held liable for this and had to reimburse all the family’s additional expenses 27 . Many other decisions rendered under the same circumstances maintained that the travel agent had to support all costs, even when accommodation exceeded three nights – but this was before the implementation of the Directive 28 . In some situations, the travellers will ultimately support the costs of the assistance. This will only be the case if they intentionally caused their difficulty or if they were negligent. Indeed, it results from the Directive that the organiser or the retailer have to assist their clients in any situation, even if the travellers put themselves in difficulty intentionally or negligently. However, it is admitted that in such cases, 24 Article 13 (7). 25 Except for persons with reduced mobility, their accompanying persons, pregnant women and unaccompanied minors – see Article 13 (8). 26 It should be noted that a draft regulation to amend the EC Regulation 261/2004 on air passengers’ rights, which is still under discussion, provides a maximum of three nights’ accommodation to be offered by the airline to assist the passengers if a flight cannot be operated because of an extraordinary circumstance. The European legislator intended to provide similar provisions for the organisers of travel package in the Directive. All businesses will be treated equally to this end. Com (2013) 0130 – C7-0066/2013 – 2013/0072(COD), 5 Feb. 2014. 27 Jur. Prox. Orléans, 15 février 2011, n°91-10-380, BTL n°3370 20 June 2001, p371. 28 Cass. Civ. 1, 8 March 2012, n°10-25913; Cass. Civ. 1, 17 October 2012, n°11-23387; Cass. Civ. 1, 17 October 2012, n°11-25167.