Collective Commentary about the New Package Travel Directive

480 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE 3. FREEDOM OF AGREEMENTS AND IMPERATIVE NORMS IN THE FIELD OF CONTRACTS The imperative nature of national transpositions of the Directive (EU) 2015/2302 is relevant for both national and international package travel contracts and linked travel arrangements. a) For national contracts The imperative nature of the Directive ensures the application of the national transpositions of the Directive. The principle of contractual freedom, which is the centrepiece of contract law in all Member States, enables contracting parties to conclude the contract that best suits their particular needs. The freedom of agreement between the parties is an essential principle of the private law of contracts, recognized expressly or implicitly in all legal systems of civil law and even in systems of common law (freedom of the contract) 5 . Nevertheless, in a largemajority of cases, and in particular for fairly straightforward and often repeated transactions, parties are often interested in using standard contract terms. The use of standard contract terms spares the parties the costs of negotiating a contract. Such standard terms are often formulated by one of the contracting parties, in particular, where a single contracting party possesses sufficient bargaining power to impose its contract terms, either as a seller, as a service provider or as a purchaser of goods or services. In other cases, such standard contract terms are developed by a group of contracting parties, representing either one side in contract negotiations or, more rarely, both sides, or they may even be developed by a third party. This freedom is restricted by certain compulsory contract law provisions or requirements resulting from other laws 6 . But disparities in national contract law create great uncertainties for consumers because they do not have enough information on the applicable law, and most of the difficulties arise in particular from the diversity in mandatory laws. The autonomy of the parties to decide on the content of the contract prevails over the dispositive law, in such a way that they can exclude or modify it, but not in terms of the imperative law. Here lies the importance of the new Directive 5 Vid. C. VAQUERO LOPEZ, “Autonomía de la voluntad y normas imperativas”, Derecho contractual comparado. Una perspectiva europea y transnacion al. Tomo II. S. SANCHEZ LORENZO (Edt.), Pamplona, 2016, pp. 89-129. 6 Communication from the Commission to the European Parliament and the Council – A more coherent European contract law – An action plan. COM/2003/0068 final. Official Journal 063. 15/03/2003 p. 0001 – 0044.