Collective Commentary about the New Package Travel Directive

400 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The aim of the European regulation is to effectively guarantee to the traveller the reimbursement of all the payments made and his repatriation in case of insolvency. That is why the States must consider in their internal regulations a concrete way to calculate the proper amount of the security, as this must be enough to achieve the goal of the Directive and must also be enough to allow the consumer to effectively receive the restitution of all the payments made. The use of any criteria whose object or effect is to limit the scope of such a guarantee will be manifestly contrary to the obligations arising from the Directive and, thus, would imply a violation of European Union Law. Member States do not enjoy any margin of discretion regarding the approach of the contingencies that should be covered by the insurance offered by the organiser or retailer to the traveller. Despite this discretion of the internal legislators to decide on the concrete form of the requested guarantee, the European rule requires this security to be “effective”, with disregard to the proper form that it takes. The Directive itself clarifies what is to be understood by such a concept. To this extent, it states that the protection of travellers must be at their disposal as soon as the services are not provided, will not be provided or are only partially provided, as well as in the cases where any of the providers of services request the payment to the travellers. This protection will arise provided that the situations come to pass as a consequence of the organiser’s liquidity problems. The Directive considers the obligation of the organisers of travel packages. However, and considering the differences between the regulation of the Member States regarding the offer and commercialization of travel packages and the reception of the payments made by the travellers, the Directive has foreseen that every State may request the contracting of such a guarantee not only by wholesalers but also by retailers 41 . These obligations also bind organisers, wholesalers or retailers that are not established in a Member State but that commercialize and offer travel packages, by any means, in any of the States of the European Union. The Directive considers that these undertakings must provide the security requested by the regulations of the State towards which they target their offers. 41 This has been considered in the Portuguese Law under the Decrete-Law no. 17/2018, 8 March, the rules for the access and exercise of activities by travel and tourism agencies, transposing Directive 2015/2303, Diário da República, 1.ª Série –N.º 48-8 March 2018. Also the Spanish Act transposing the Directive, Real Decreto Ley 23/2018, of 21 December, on the transposition of Directives on trademarks, railway transport and travel packages and linked travel arrangements, Boletín Oficial del Estado of 27 December 2018.