Collective Commentary about the New Package Travel Directive

484 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE (a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or (b) by any means, directs such activities to that country or to several countries including that country, and the contract falls within the scope of such activities. 2. Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1. […] 4. Paragraphs 1 and 2 shall not apply to: […] (b) a contract of carriage other than a contract relating to package travel within the meaning of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours ( 15 ); Travellers should be protected by rules of the country of their habitual residence that cannot be derogated from by agreement, provided that the consumer contract has been concluded as a result of the professional pursuing his commercial or professional activities in that particular country. The same protection should be guaranteed if the professional, while not pursuing his commercial or professional activities in the country where the consumer has his habitual residence, directs his activities by any means to that country or to several other countries, including that country, and the contract is concluded as a result of such activities. In this sense, the imperative nature of the Directive (art. 23) plays an important rule. So, regardless of the law chosen, travellers may not waive rights stemming from the Directive and organisers may not evade their obligations by claiming that they are simply acting as a travel service provider, an intermediary or in any other capacity. That means, for example, that a traveller with habitual residence in Portugal, who hires a package travel through the company eDreams, will be subjected to the laws of England and Wales but taking into account the