Collective Commentary about the New Package Travel Directive

456 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE which pertains to the right to seek redress against third parties, notwithstanding how a wider interpretation of this rule allows to conclude that the retailer, in case of failure in providing evidence that the organiser also complies with Chapter IV and Chapter V of the Directive, would be entitled to sue the organiser based outside the EU/EEA in order to be refunded for the compensation already paid to the consumers. Unfortunately for the retailer, this solution whose implementation should be performed ex post when the damage has already occurred, would hardly have a positive result. On the one hand, it should be pointed out that to sue the organiser, without forum conveniens and applicable law clauses, the right to seek redress in favour of the business would become difficult to achieve. On the other hand, it has to be considered that the organiser’s legal framework would be part of a legal tradition, in opposition to the one pertaining to the retailer. Notwithstanding, considering how the majority of the claims proposed by the travellers would entail issues linked to a lack of conformity, it is advisable that retailers, instead of trying to reach the hard burden of proof as stated in Article 20 of the Directive, may prefer to assume primary liability in front of travellers. In a second moment they may activate other mechanisms, such as conciliation or arbitration, to seek redress, possibly under the governing law of the retailer. Once again, the conclusion is that the bargaining power of one part against the other will make the difference in the practical implementation of Article 20, considering the generally subordinate position of the retailer in front of the organiser. In conclusion, it is desirable that retailers will join private mechanisms of insurance to cover their risk of appointing an organiser based outside the EU/ EEA. If not, retailers as a category, as part of some large groups operating as OnlineTravel Agencies, will not have other option than selling services combined by internal market organisers and in the long run this could mean gradually reducing their presence in the market and favouring even more a concentration of undertakings.