Collective Commentary about the New Package Travel Directive

ARTICLE 17 | PATRICIA BENAVIDES VELASCO 395 regulations on insolvency by means of different instruments, most of them without a direct normative effect, as they are documents under the form of Recommendations or Communications to other European bodies 31 . The European Commission calls upon member States to guarantee that their internal regulations on insolvency have fast and efficient proceedings in the best interests of creditors and debtors, to cooperate in keeping employment, helping suppliers to maintain their clients and to protect the value of viable enterprises. This diversity of judicial proceedings and the different rules governing them have led European authorities to include some rules on insolvency issues in a few regulations on relevant topics that mainly affect consumers. This happened in the 1990 Travel Packages Directive and has surfaced again in the current Directive. The European Regulation on insolvency proceedings of 2015 32 allows any creditor of the organiser – independently of its place of residence or registered office – to make a claim for the reimbursement of his credit. However, in these cases the applicable law of the proceeding will be the one of the State in which it has been opened. As noted above, it has been common for companies providing the services included in a travel package to make a claim towards the costumers regarding the payment of their services, in case of insolvency by the organiser. By doing so, they only try to avoid being included in insolvency proceeding that would lead to the recovery of their credits from the organiser 33 , avoiding the cost that such a claim would entail within this insolvency proceeding. Some of the most relevant authors have indicated that the rules on travel packages have stablished an insolvency privilege whose effects must be contrasted with the internal rules regulating the insolvency institutions under Spanish regulation 34 . 31 Among others, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee “A new European approach to business failure and insolvency”, Doc. COM (2012) 742 final, 12-12-2012; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions “Entrepreneurship 2020 Action Plan Reigniting the entrepreneurial spirit in Europe”, Doc. COM (2012) 795 final, 9-1-2013; Commission Recommendation of 12 March 2014 on a new approach to business failure and insolvency (Text with EEA relevance) (2014/135/EU), OJEU L/74/63, 14-3-2014. 32 Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on Insolvency Proceedings, OJEU L 141, 5-6-2015. 33 On this topic, see GONZÁLEZ CABRERA, I. (2017), “Una nueva configuración legal del viaje turístico. Del viaje combinado al paquete dinámico”, Revista Doctrinal Aranzadi Civil-Mercantil , 7, pp. 29 ff. 34 AURIOLES MARTÍN, A., (2005), Introducción al Derecho Turístico. Derecho Privado del Turismo , Madrid, Tecnos, p. 164.