Collective Commentary about the New Package Travel Directive

390 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE provider. We must keep in mind that this provider is a third party to the travel package contract, which only has binding effects between the consumer and the organiser or retailer. The Court concludes that the risk for the consumer who has acquired the travel has its origin in the organiser’s insolvency and, thus, this situation must be covered by the security offered to the consumer 18 . The security for the reimbursement of the paid amounts also covers the cases in which the insolvency or bankruptcy of the organiser has occurred in two different moments. The first one is after the conclusion of a package travel contract and before its execution. A second moment in which this security may be activated is when the provision of the relevant services is interrupted as the contract is under execution. In this latter case, the subsequent obligation is to reimburse the consumer for the paid amounts, corresponding to the services that have not been provided. Considering the scope of the security for the repatriation of the consumer, it is important to note that its goal is to impede the buyer of the package contract from returning to his place of origin during the execution of the contract. In particular, this impossibility may arise from the denial of the companies to provide the contracted service 19 as a consequence of the insolvency of the organiser. However, the Directive was drafted as a minimum harmonization stipulation, and it foresaw the possibility that member States would adopt stricter measures in their internal regulations to protect consumers. This broad margin of discretion left to the member States to regulate certain aspects also had a negative consequence. An important legal fragmentation took place as a consequence of the divergencies considered in the national regulations of each member State, which entailed higher costs for companies and the creation of obstacles for transnational businesses. One of the main disadvantages of this situation is the limitation of the consumers’ possibility to choose between different products. 2. A terminological issue: consumer or traveller At this point, and before considering the duty to provide the security considered in the current Directive on package travel and linked travel arrangements, we 18 This reasoning is kept in the interesting judgement of the Court of Justice (Fifth Chamber), of 14 May 1998, issue C-346/96, Verein für konsumenteninformation . ECLI:EU:C:1998:226. 19 For instance, this will happen when the hotel does not enable the host abandons its facilities until the provided services are paid, also in the cases in which an airline or the provider of a transport service denies to provide the service that has been contracted by the organiser of a travel package because of its situation of insolvency.