Collective Commentary about the New Package Travel Directive

462 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE rights and obligations in a Directive can be derived from the recitals, which are an aid to interpretation but which do not carry legal force, but in the case of Article 21, the only relevant recital is Recital 45, which merely states that travellers should be protected in relation to errors occurring in the booking process of packages and linked travel arrangements, which is hardly illuminating. Nevertheless, the new Directive is intended to provide enhanced consumer protection, and other Recitals not directly relevant do provide a clue as to the general reasoning behind the inclusion of Article 21. Essentially, problems arose under the old Directive when the delineation of the obligations of retailers and organisers were unclear, with the effect that the consumer did not know in advance which of the entities involved in the provision of the holiday was responsible for which of the duties under the holiday contract. Although Article 21 does not attract a great deal of attention in the recitals and appears towards the end of the new Directive, it is suggested that, as the English examples given above illustrate, liability for booking errors was an area in which such confusion was particularly acute. The new Directive therefore brings some welcome clarity to the position, as well as harmonising liability throughout the Member States. 3. THE EFFECT OF ARTICLE 21 OF THE NEW DIRECTIVE: THE DUTY Article 21 provides that: “Member States shall ensure that a trader is liable for any errors due to technical defects in the booking system which are attributable to him and, where the trader has agreed to arrange the booking of a package or of travel services which are part of linked travel arrangements, for the errors made during the booking process. A trader shall not be liable for booking errors which are attributable to the traveller or which are caused by unavoidable and extraordinary circumstances.”. The new Directive therefore sweeps away the uncertainty left by the old Directive and provides an entirely novel legal framework in respect of liability for booking errors. Article 21 foreshadows two possible ways in which errors might be made in relation to the booking process, and renders the trader liable for both of them. It will be recalled that under Article 3(7) a trader is defined as any natural legal person acting in the course of his business in relation to contracts covered by the Directive, whether as organiser, retailer, trader facilitating a linked travel