Collective Commentary about the New Package Travel Directive

ARTICLE 20 | GIANLUCA ROSSONI 453 Additionally, undoubtedly there has been a significant trend towards buying travel services through the Internet. Not only does a traveller frequently prefer to buy tourist services through distance selling contracts, but the retailer also prefers to buy packages through those systems and subsequently offer them to the final consumers. This phenomenon increases significantly when the retailer operates as an Online Travel Agency through a portal which is collecting offers from different organisers established in various countries. Not all the retailers, especially those focused on long-haul travels, such as retailers specialised in selling honeymoon journeys or exotic destinations, would welcome having to operate directly as organisers, considering how their business model is more focused on the online selling phase instead of combining packages. Moreover, the responsibility clause stated by Article 20 of the Directive would also risk to restrict or limit the market by creating an excessively favourable treatment for European organisers offering packages to be enjoyed by travellers outside the EU/EEA. As mentioned above, it should be pointed out that the transposition of this provision could infringe on the competition law to be applied to the undertakings, in case a Member State adopts a domestic legislation that is not compatible with the internal market insofar as the retailer would be obliged to appoint an internal market organiser. For instance, in order not to be considered liable for the performance of the contract and of insolvency protection, a retailer could be requested to deposit a financial bond linked to the activity of organiser based outside the EU/EEA. This bond could be requested to be issued in the Member State where the retailer operates. This solution seems to threaten to distort competition by favouring organisers in violation of EU competition law 23 . In fact, there is no doubt that Article 101 TFEU is one of the most prominent Treaty provisions on competition. It concerns efficiency agreements of competition that can be measured and appraised in many different ways, especially in case of agreements that have the effect of restricting competition. Therefore the incumbent risk upon Article 20 is based on the high degree of concentration of tour organisers in the creation of packages to be consumed by the travellers outside EU/EEA, in a market where the participants will be increasingly fewer. The outcome of such a market could show a remarkable 23 Article 107(1) of TFEU provides that “Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market”.