Collective Commentary about the New Package Travel Directive

452 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE In case the retailer is appointing directly an organiser established outside the EU/EEA, the former will not count in the same institutional mechanism and each Member State will re-appropriate the competence in order to assess independently the validity of the insolvency protection scheme provided by the organiser. This evaluation will probably be strict, considering how the primary scope is to protect consumers. In addition, Member States could decide further requirements for the insolvency scheme. The most frequent one would be that this document should be issued by internal market businesses (insurance companies or guarantee funds). Consequently, a retailer that decides to appoint directly an organiser established outside the EEA could suffer the following hindrances: a) the organiser outside the EU/EEA could be requested to provide an insolvency protection scheme issued in the same Member State of the retailer; b) the retailer could be forced to select only organisers outside the EU/EEA that have a high level of reliability according to internal market standards; c) in any case, Member States legislation will keep the retailer bound to a subsidiary responsibility, in case the insolvency protection scheme issued outside the EU/EEA would not be deemed as sufficient. The consequence of this situation could be to reduce the retailer’s autonomy in the choice of his business partners, especially when the retailer would decide to pass over the EU/EEA organiser and appoint directly an organiser in the location where the package travel will be performed, in order to reduce costs and be more competitive in the market. Therefore, it seems that Article 20 also has the opaque goal to favour internal businesses in order to force retailers to appoint an internal market organiser. This solution seems to have some negative implications in terms of competition law 22 . It should be pointed out, in this regard, that while the Directive 90/314/EEC also had the aim to persuade consumers to buy package travels organised by Community businesses, on the other hand Article 20 of the Directive seems not to deliver completely this final decision to consumers, but to create a disruptive sanction to retailers by de facto forcing them to appoint an internal market organiser and consequently limiting the possibility to reduce costs, which will be eventually detrimental for travellers. 22 See Tesauro, Manuale di diritto dell’Unione Europea , Editoriale Scientifica, 2018, 290.