Collective Commentary about the New Package Travel Directive

ARTICLE 20 | GIANLUCA ROSSONI 451 has the aim to ascertain if the same operator has to be considered in the State Member as an organiser and, in case of a positive response, the retailer should be therefore exonerated from the obligations stated in Chapter IV and Chapter V of the Directive. Moreover, Member States should always consider, during the assessment, that the main scope of the Directive is to attain a high level of consumer protection. Consequently, two options may result from this process. The first consists in considering the secondary establishment based in the territory of the Member State as a mere agent of the organiser and therefore the specific provision of the Article 20 against the retailer should be wholly applied, unless the retailer provides the requested evidence. The second intends to double the number of traders bound to guarantee the performance of the package and the insolvency protection in favour of the consumers. The decision between these two options should be taken after a deep examination of the substantial activity 20 of the organiser in the Member State where the secondary establishment is based and if its economic fundings are within this Member State. Once it is assessed that the organiser is established outside the EEA, the retailer will face significant difficulties to implement the safeguard clause stated in the second part of Article 20 of the Directive, with the goal of being exonerated from his responsibility for the performance of the contract. Consequently, it should be pointed out that the same Directive has established in the specific Article 18 21 a systemof mutual recognition of insolvency protection schemes at the level of Member States. This means that the European Parliament and Council were perfectly aware of the friction that the internal framework would generate in the acceptance process of these financial instruments when Member States operate to protect their travellers. In other words, it seems that retailers would hardly reach the exemption of liability. Therefore, it was decided to create a system of mutual recognition and administrative cooperation, including the provision that if a Member State has doubts about an organiser’s insolvency protection, it shall seek clarification from the Member State where the organiser is established. Secondly, Article 18 reveals the objective difficulty to create voluntary mutual recognition of insolvency protection schemes in the internal market. This reason had led to the funding of an institutional mechanism of collaboration to overcome the future friction between Member States. 20 One element of presumption could be if the secundary establishment has a bank account in the Member State. 21 Article 18 “Mutual recognition of insolvency protection and administrative cooperation”.