Collective Commentary about the New Package Travel Directive

450 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE On this regard, Article 3(10) ofDirective states that the definitionof establishment has to be reached from point 5 of Article 4 of Directive 2006/123/EC, which confronts the term establishment with the concept of stable infrastructure 14 . In addition, it is irrelevant if the organiser is a company (legal person), a natural person or other legal person governed by private or public law 15 , being only necessary to ascertain if the organiser operates as a trader who combines and sells or offers for sale packages 16 ; once this requirement is satisfied, consequently, Article 20 should be applied in full. If the organiser is not established within the EU/EEA, the governing law of the status should be his law. Secondly, it has to be excluded that if this organiser directs 17 his activity to the Member State where a consumer resides, by proposing distance selling within the meaning of Article 15(1)(c) of Regulation No 44/2001 18 , this ascertains that the organiser is established in the EU/EEA and consequently the retailer is automatically exonerated from the burden of proof that the organiser has complied with regarding the obligations related to the performance of the package travel and the insolvency protection scheme. In addition, we have to examine cases where the organiser, which is not established in the EU/EEA, performed his activity in a Member State through a subsidiary, branch or agency of the company whose head office remains outside the EU/EEA. In this case, it is the governing law of the Member State where the organiser has his subsidiary, branch or agency that should confirm if the organiser is operating in this territory not as main place of business but as mere sales agent without power of attorney and being an autonomous body. This is usually the case of the general sales agency. This assessment should be given through intendments based on the international private lawof theMember Statewhere this secondary establishment 19 operates and on a reciprocal basis, as laid down for country nationals outside the EU/EEA, where the organiser’s first establishment is put into effect. This activity 14 Point 5 of Article 4 provides that “establishment” means the actual pursuit of an economic activity, as referred to in Article 49 of the TFEU, by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out. 15 With the exception for those which are not profit-making, in accordance with Article 54(2) of TFEU. 16 See Article 8(3) of the Directive. 17 See ECJ 7.12.2010, C-585/08 and C-144/09, in relation to the interpretation of the activity directed to the Member State of the consumer’s domicile. 18 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. 19 See Article 49 of the TFEU.