Collective Commentary about the New Package Travel Directive

466 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE easily by showing that there were appropriate systems in place to avoid such errors. However, in practice the matter may be rather more nuanced than this; and different Member States might well reach different positions on the operation of the defence. In the example aired above, the case of the traveller who requests interconnecting rooms, the travel agent might pass on the request to the hotelier, which might not record it; or the record might be lost. The traveller might bring proceedings against the trader for the error made during the booking process, and the travel agent would, on the face of it, be liable to him or her. However, the trader could then show that the error was made during a part of the booking process over which he had no control, but would then have to go on to show that it could not have been avoided even if all reasonable measures had been taken. This raises the question, of course: by whom must the measures be taken? If the requirement is for the trader himself to take the reasonable measures, in our example the defence would be relatively easily made out. The trader would be able to show that he had passed on the request and that, as far as he knew, the supplier was aware of it. He might have to go so far as to show that he had checked that the supplier had received the request; but he could not reasonably be expected to do any more. On the other hand, if the requirement is for the entity making the error to have taken reasonable measures against it, the defence would be harder to establish; the trader would have to show that the supplier had systems in place to record requests, to guard against their loss or deletion, and to action them. This would raise evidential difficulties; the trader would be expected to produce proof from a third party, often in a different jurisdiction. It would also make the defence much harder to make out, for if all reasonable measures were in place, it is difficult to see how the error could be made. As yet lawyers can only speculate as to which of the alternative analyses posited above might be preferred, and it would be open to the courts of different Member States to come to different conclusions on the issue. However, the fact that it is clearly the intention of Article 21 to fix traders with the errors of others does tend to suggest that the reasonable measures must be taken by the entity making the error. As well as being consistent with the wording and intention of Article 21 this analysis also has the advantage of affording the maximum consumer protection, which is of course the rationale underpinning the entirety of the new Directive, and in particular Article 21. If this is the correct analysis, it is anticipated that traders will only very rarely be able to establish the defence to Article 21 afforded by “unavoidable and