Collective Commentary about the New Package Travel Directive

ARTICLE 20 | GIANLUCA ROSSONI 455 Moreover, some issues regarding the effectiveness of the exonerating clause would arise. According to substantive principles, it seems that producing a signed contract including a mere declaration about taking sole and full responsibility for the performance of the contract and for the guarantee of the insolvency protection would not reach the burden of proof in order to discharge the retailer’s liability. This solution would also be against the main scope of the Directive: to achieve a high level of consumer protection. Secondly, the retailer would infrequently have a way to force the organiser based outside the EU/EEA to accept as applicable law the first one in effect. Considering the usual dynamics of negotiations between parties, the last solution would be hard to enact by the retailer and the burden of proof would be virtually impossible to achieve 26 . Another possibility to achieve this evidence for the retailer could be to propose to the organiser, based outside the EU/EEA, to adhere to a financial/ insurance protection scheme issued by specialised companies registered inside the EU/EEA and tailored for organisers based outside the EU/EEA. This solution would probably fail when facing another practical issue: the high cost of insurance to be paid by the beneficiary, who may probably refuse to absorb it. The third solution at hand for the retailer would be to appoint an internal market organiser only for this specific scope, to overpass the responsibility stated in Article 20 by virtue of a contract where this organiser would only bear this liability in exchange for a commission, while the retailer and the organiser outside the EU/EEA would maintain the effectiveness of the agreement regarding the performance of the contract. At this stage, the solutions proposed are necessarily limited since much will depend upon the practical developments. Overall, the provision of Article 20, particularly in terms of how to reach the burden of proof in order to save the retailer from the liabilities stated in Chapter IV and Chapter V of the Directive, seems hard to achieve by the retailer. In this regard, for the latter it would be troublesome to convince the counterpart to sign an ex ante responsibility clause as stipulated on Article 20, while it is more likely that the retailer would enact his right of redress at the last stage, as stated in Article 22 of the Directive 27 26 See Whish, Bailey, Competition Law , Oxford, 2015, 545-600. 27 Article 22 provides that “In cases where an organiser or, in accordance with the second subparagraph of Article 13(1) or Article 20, a retailer pays compensation, grants price reduction or meeets the other obligations incumbent on him under under this Directive, Member States shall ensure that the organiser or retailer has the right to seek redress from any third parties which contributed to the event triggering compensation, price reduction and other obligations”.