Collective Commentary about the New Package Travel Directive

448 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE this article states an expansion of liabilities against a retailer 2 when the latter sells packages combined by an organiser established outside the EU and the European Economic Area (EEA) 3 . The main scope of this Article appears to be clearly in line with the goals of the Directive, which strive towards achieving a far-reaching level of consumer protection 4 . However, it gives rise to concerns regarding the weak consideration that the Directive has granted to the special situation of the smaller companies that usually operate in the tourism market as retailers. By thoroughly analysing this Article 5 , it is hard to fully accept the European Commission’s view, which has emphasised how this piece of legislation shares the goal of reducing the administrative burden on businesses, to bring down compliance costs for traders 6 and how this solution has struck the balance between easier cross-border transactions and increased legal certainty. This also happens because, during the consultation process, the European Commission promoted a clear approach that takes into account how Member States should not neglect giving attention to the special situation of Small-MediumEnterprises 7 . This view is also confirmed by another fundamental provision of the Directive concerning the responsibility of the performance of the package, which states that the organiser 8 is responsible for the performance of the travel services included in the package travel contract. It should be pointed out that, in this part, the Directive is more stringent than what was agreed upon in the Directive 90/314/EEC 9 , where Member States were only obliged to take the necessary steps to ensure that the organiser and/or the retailer party are liable to the consumer for the proper performance of the contract. In fact, the Directive 2 Article 3(9) of Directive provides that “retailer means a trader other than the organiser who sells or offers for sale packages combined by an organiser”. 3 The Agreement on the European Economic Area brings together the EU Member States and the three EFTA States, http://www.efta.int/eea. 4 Recital (3) states that Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU. 5 See Finessi, La nuova disciplina europea dei contratti di viaggio , Jovene, 2017, 97. 6 http://ec.europa.eu/consumers/consumer_rights/travel/package/index_en.htm. 7 Recital (44) provides that “When laying down rules on insolvency protection schemes in relation to packages and linked travel arrangements, Member States should not be prevented from taking into account the special situation of smaller companies while ensuring the same level of protection for travellers”. 8 Article 13(1), first paragraph of the Directive states that “Member States shall ensure that the organiser is responsible for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers”. 9 See Articles 5 and 8 of Directive 90/314/EEC.