Collective Commentary about the New Package Travel Directive

ARTICLE 20 | GIANLUCA ROSSONI 449 90/314/EEC substantially adopted a model of liability with three possibilities of implementation 10 : sole liability of the organiser, sole liability of the retailer and joint liability of organiser and retailer; in all cases without prejudice for both traders to seek reciprocal redress and in terms of the respective suppliers 11 . Regarding the Directive, it seems that a different model is adopted and will probably have a relevant influence in the future business relations between organisers and retailers. In fact, according to Article 4 12 Member States are excluded from maintaining or introducing in their national law provisions diverging from those laid down in this Directive, therefore, by virtue of this provision the retailer becomes liable for the proper performance of the contract when he decides to directly appoint an organiser established outside the EU/EEA 13 . To compensate the stringency of Article 20, the second part of this provision states an exonerating circumstance by which the retailer would not be liable if the organiser outside the EEA should comply with the obligations related to the performance of the contract and mostly to the insolvency protection scheme. This safeguard clause seems difficult to be applied by the retailer. The main obstacle is the complexity inherent to the harmonisation of an external legal framework of the organiser established outside the EU/EEA with the legal framework of the retailer, which is established in his Member State. This is connected to the different bargaining power of the retailer and organiser, with the latter generally being higher and unlikely to accept as applicable law in business-to-business contracts to be subjected to EU legal framework. Particularly, the meaning of establishment entails the concept of permanent installation. Therefore, it should be noted that Article 20 of the Directive refers to an organiser established in accordance with the legislation of the State outside the EU/EEA where he has his registered office, central administration or principal place of business in order to pursue an economic activity in this State. 10 See De Cristofaro, “La disciplina dei contratti aventi ad oggetto pacchetti turistici nel codice del turismo: profili di novità e questioni problematiche”, Studium Juris , 2011, 1282-1288. 11 Recital (23) of the Directive 90/314/EEC has given discretion to the Member States to determine whether retailers, organisers or both retailers and organisers are liable for the proper performance of a package. That flexibility could create ambiguity in Member States where the trader is liable for the performance of the relevant travel services. Therefore, this Directive should be interpreted as the organisers are responsible for the performance of the travel services included in the package travel contract, unless national law provides that both the organiser and the retailer are liable. 12 Article 4 of the Directive states that “Unless otherwise provided for in this Directive, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions which would ensure a different level of traveller protection”. 13 See Führich, Das neue Pauschalreiserecht. Umsetzung der Pauschalreiserichtlinie (EU) 2015/2302 in deutsches Recht, Neue Juristische Wochenschrift, 2017, 2945.