Collective Commentary about the New Package Travel Directive

ARTICLE 23 | SILVIA FELIU 485 imperative package travel contract provisions of Portuguese law (Decree-Law number 17/2018 of 8 March). If the law chosen is the law of a Member State of the European Union, there are not many differences between the legal transpositions of the Directive (EU) 2015/2302 of one State and another, considering the high levels of harmonization that currently exist. A high level of harmonization (Article 4 Directive (EU) 2015/2302) enhances transparency and increases the legal certainty for travellers and traders, no matter the applicable law of the contract. Article 4 transformed the paradigm that existed on the previous Directive of minimum harmonization to the current maximum harmonization one, according to what became common in Directives that showed a strong concern about traveller protection 13 . However, it is possible that the chosen law is the law of a third state (Ex. Brazil) because of the universal application of the Regulation Rome I (Article 2: “ Any law specified by this Regulation shall be applied whether or not it is the law of a Member State ”). In this case, the imperative nature of the Directive allows the application of European national provisions in package travel contracts, even if the chosen law is not the law of a Member State. Therefore, Paragraph 4, Article 3 Roma I establishes that: “Where all other elements relevant to the situation at the time of the choice are located in one or more Member States, the parties’ choice of applicable law other than that of a Member State shall not prejudice the application of provisions of Community law, where appropriate as implemented in the Member State of the forum, which cannot be derogated from by agreement”. Due to the imperative nature of the Directive, transpositions of the Directive (EU) 2015/2302 by the Member States are provisions of Community law which cannot be derogated from by agreement, and cannot be derogated from by agreement whether the chosen applicable law of the contract is the law of a Member State or not. 5. INTERNATIONAL LINKED TRAVEL ARRANGEMENTS AND IMPERATIVE NATURE Directive (EU) 2015/2302 is clear in understanding that a linked travel arrangement is the result of separate contracts with each individual travel service 13 See A. RIBEIRO CAFÉ, “Package Travel Directive: contractual parties and level of harmonization”, The New Package Travel Directive , V. Franceschelli; F. Morandi; C. Torres (Ed.), Lisboa, 2017, pp. 345-364.