Collective Commentary about the New Package Travel Directive

388 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE This provision was one of the most controversial during the drafting of the Directive, as it provoked much discussion during the legislative work. In fact, its final content ended up being quite different from the content considered in the Proposal. The proposal established the obligation of travel agencies to enter into an insurance contract to cover the duties stemming from a travel package contract, furthermore it also included the obligation to create a guarantee fund to cover unsettled compensations 10 . The draft of the proposal for a Directive was quite ambiguous, as it did not clearly establish the approach the rule should take 11 . Moreover, the difficulty to specify its exact content and the lack of sanctions in the event of infringement led to redrafting procedures, which were subsequently approved. In the text, every State was allowed to decide the kind, extension and control of the requested guarantee that was considered most suitable for the singularities of the internal regulation 12 . In fact, the Court of Justice of the Union had the opportunity to consider the scope and enforceability to provide such a guarantee 13 , as both the consumer and the industry benefit from its constitution under situations of organiser’s insolvency 14 . This guarantee could be enforced under any kind of insolvency event, including the cases in which the insolvency proceeding could have a guilty ruling, as a result of the activity of the organiser itself. In fact, article 7 of the 10 On this topic, see GÓMEZ CALLE, E. (1998). El contrato de viaje combinado , Madrid, Civitas, p. 303 so as MARTÍNEZ ESPÍN, P. (1999), El contrato de viaje combinado (antecedentes, Derecho comparado, estudio normativo y jurisprudencial) . Cuenca, Servicio de Publicaciones de la Universidad de Castilla-La Mancha., pp. 243 ff. 11 SÁNCHEZ RUIZ, I. (2000), “Medidas legales para la protección del consumidor contra el riesgo de insolvencia del organizador y/o detallista (A propósito de la Sentencia del Tribunal de Justicia de las Comunidades Europeas, de 14 de mayo de 1998)”, in Derecho y Turismo , (Dir. A. Aurioles Martín), Sevilla, Consejería de Turismo y Deporte de la Junta de Andalucía, p. 433. 12 GÓMEZ CALLE, E. (1998). El contrato de viaje combinado , Op. cit ., p. 309. 13 On the judgements of the Court of Justice enforcing the Directive, see the clarifying essay of TORRES CAZORLA, M.ª I. (2010), “La normativa comunitaria en materia turística y su aplicación por el Tribunal de Justicia Comunitario”, Revista Andaluza de Derecho del Turismo , 4, pp. 11-46. 14 Judgement of the Court of Justice of 15 June 1999, issue C-140/97. ECLI:EU:C:1999:306. In this issue, the Court states that article 7 of the Directive also covers those travels that are offered as a gift to certain people, even when the advertising campaign resulted to be fraudulent according to the national competition provisions, as it conferred the travelers the duty to pay for airport fees, so as the supplement for an individual room. Moreover, it considers that Austria did not properly adapt its national regulation to the requirements of the Directive: Article 7 of Directive 90/314 has not been properly transposed where national legislation does no more than require, for the coverage of the risk, a contract of insurance or a bank guarantee under which the amount of cover provided must be no less than 5% of the organiser’s turnover during the corresponding quarter of the previous calendar year, and which requires an organiser just starting up in business to base the amount of cover on his estimated turnover from his intended business as a travel organiser and does not take account of any increase in the organiser’s turnover in the current year .