Collective Commentary about the New Package Travel Directive

ARTICLE 17 | PATRICIA BENAVIDES VELASCO 405 as these become due. Alongside those conditions, under those circumstances the debtor has the duty to request the declaration of insolvency. As we can see, the Spanish regulation requires a certain situation to take place and this reality needs to be declared within the framework of a judicial proceeding. Thus, to consider a person to be in an insolvency situation, these circumstances must take place and it’s also necessary to have a judicial decision by the Commercial Court declaring the opening of the insolvency proceeding of a certain debtor. The legal concept of insolvency – as established by the Spanish Supreme Court – covers those situations in which the debtor is unable to regularly comply with its due payment obligations. This situation is completely different from the one in which the debtor only suffers an asset imbalance 53 . Article 164.3 of the Consolidated Text of the General Act for the Protection of Consumers and Users has considered the European mandate and has clarified the issue at stake. In this regard, such provision considers that “insolvency is to be considered as soon as it is evident for the lack of liquidity of the organisers or retailers that the travel services stop from executing, are not going to be provided or are going to be provided only partially, or when the providers of the services request the travellers to pay for them”. As we can see, this concept of insolvency does not correspond to the one considered in the Insolvency Act. Even when the rule on travel packages gives a concept of insolvency that differs from the content of the Insolvency Act, it would have been desirable that it had clarified how, when it refers to an insolvency situation, this notion does not match the meaning of insolvency under the Insolvency Act. However, it would also have been advisable to use the forwarding technique between both regulations in cases where such doubts may arise 54 . Most of the regional regulations have given a definition of insolvency to the extent of the activation of such security. The legislators of the Autonomous Communities have considered that the insolvency takes place when, as a consequence of the lack of liquidity of the organiser or the retailer, the services 53 On this, see Judgement of the First Chamber of the Spanish Supreme Court 122/2014, of 1 April 2014, Rec. 541/2012, ECLI:ES:TS:2014:1568. 54 This is also considered by the Report of the Competition Chamber of the National Commission on Markets and Competition, relating to the Draft Act for the modification of the consolidated text of the General Act for the Protection of Consumers and other complementary acts. Report IPN/CNMC/042/17, of 21 December 2017. Available at: https://www.cnmc.es/sites/default/files/1887234_13.pdf.