Collective Commentary about the New Package Travel Directive

396 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE It has also been considered that under the Spanish regulation, in case of insolvency of the organiser and before the execution of the contract has begun, the consumer would have a credit against the estate for the provision of the travel package, which will amount up to the interim sums paid through and the ones already made. The ground for this is that under these circumstances, reciprocal duties arise from the contract binding the consumer and the organiser. That is why the declaration of insolvency will not affect these kinds of contracts by itself 35 . On the contrary, in those cases in which the declaration of insolvency takes place once the travel has begun, the consumer will have wholly complied with his duties – amongst them, the payment in full of the price. In these cases, the contract will not be able to be executed because of the problems that the very declaration of insolvency entails for the rest of the businesses that provide the services of the travel package – as mentioned above. These extra-insolvency privileges also exist in other regulations about the protection of consumers interests. For example, that is the case of the insolvency of airlines 36 . In 2013, following the insolvency of several airlines that left thousands of travellers without the possibility to return to their homes, the European Commission presented a Communication intended to protect passengers in the event of insolvency of the airlines 37 . However, as it is considered by Recital 38 of the Directive under analysis, this Communication will only be enforceable with regards to air transport services and, thus, the protection of travellers facing the insolvency of the organiser in the cases of travel packages and linked travel arrangements remains outside its scope. Nevertheless, the rules considered in the Directive on travel packages and linked travel arrangements do not go against the right of travellers to make a claim under the Directive or any other relevant European, international or national regulation. Thus, the traveller will have the possibility to present their claims to the organiser, the carrier or any other subject that may result liable. However, the compensations obtained by the same reason will be deductible from the others, with the aim to avoid excessive compensations, so the traveller gets an economic benefit as a result. 35 See on this topic, GONZÁLEZ CABRERA, I. (2018), “Medidas de protección del consumidor frente a la insolvencia de los operadores turísticos: seguros, fianzas y otras garantías”, Revista de Derecho Bancario y Bursátil , no. 152/2018, pp. 201 ff. 36 On this topic, see GUERRERO LEBRÓN, M.ª J. (2011), “El concurso de las aerolíneas españolas. La protección del turista en los casos recientes”, Revista Latinoamericana de Derecho Aeronáutico , 1. 37 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions “Passenger protection in the event of airline insolvency”, 18, 3, 2013, Doc. COM (2013) 129 final.