Collective Commentary about the New Package Travel Directive

454 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE resemblance to that of a successful cartel: parallel price increases to a supra competitive level. At this point, the intervention of the Court of Justice of the European Union could be desirable to review the legality of this legislative act regarding Article 20 and in accordance with Article 262 TFEU 24 , for alleged infringement of competition law. The focus of the issue could be how the goal of protecting travellers reached by this provision has overstepped its mark and jeopardised the single market area through a disproportionate restriction of the activity of retailers. In effect, it only gives them two chances: to become a tour organiser himself or to rely on EU/EEA tour organisers and to give up a market share. 2. PRACTICAL ISSUES ON HOW TO REACH THE BURDEN OF PROOF IN ORDER TO PROTECT THE RETAILER Article 20 of the Directive maintains the possibility of the retailer reaching the burden of proof by providing evidence that the organiser established outside the EEA complies with the general provisions stated in Chapter IV and Chapter V of the same piece of legislation. It is possible that, as described above, the Member State where the retailer is based would probably transpose this article by creating administrative burdens aimed to favour the exclusive responsibility of the intermediate trader 25 . Consequently, it should be pointed out that retailers, in order to be discharged from liability, should negotiate specific clauses with organisers outside the EEA. In other words, Article 20 seems to leave retailers without institutional support when trying to reach the burden of proof through contractually hard negotiations, in situations where the bargaining power between the two parties would make a great difference. There is the risk that in future commercial practices organisers outside the EEA, in the first application of the Directive, would consider Article 20 as an obligation to accept the liability, without the chance for the retailer to require the implementation of this clause. 24 Article 263, first paragraph, of TFEU provides that “The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties”. 25 See van der Woude, EU competition law handbook , Sweet & Maxwell, 2019, 850.