Collective Commentary about the New Package Travel Directive

486 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE provider. Therefore, Paragraph 5, Article 3 Directive (EU) 2015/2302 states the following: “‘linked travel arrangement’ means at least two different types of travel services purchased for the purpose of the same trip or holiday, not constituting a package, resulting in the conclusion of separate contracts with the individual travel service providers, […]”. Consequently, the applicable law of a contract must be determined in accordance with each contracted travel service, which, as a general rule, are not consumer contracts. A contract for the carriage of passengers, accommodation contracts, rental of cars and other motor vehicles or contracts for tourist services are not considered by Regulation Roma I as consumer contracts and they have their specific provisions to determine the applicable law of the contract. Therefore, Article 6 Regulation Roma I should not apply in the context of those particular contracts, which means that in international contracting, travellers lose the protection of the imperative provisions of the law of their habitual residence if the parties choose the governing law of the contract. The freedom of choice regarding the applicable law for linked travel arrangements should be determined in accordance with Article 3 Regulation Roma I, that does not contemplate that such a choice may not have the result of depriving the consumer of the protection granted to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence (art. 6.2 Rome I). For international linked travel arrangements, the freedom of choice only has the limits contemplated in Article 3 Regulation Roma I 14 . In this context, the imperative nature of the Directive (EU) 2015/2302 could play an important role if all other elements which are relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen.That is because the choice of the parties shall not prejudice the application of legal provisions of that other country which cannot be derogated from by agreement (Paragraph 3, Article 3). Moreover, if 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 and as implemented in the Member State of the forum, which cannot be derogated from by agreement (Paragraph 3, Article 3). 14 About Online General Conditions, see M. LOOS/LUZAK.J, “Wanted: a Bigger Stick. On Unfair Terms in Consumer Contracts with Online Service Providers”, J Consum Policy (2016) 39, pp.63–90; J. R. PARDO GATO, Las páginas Web como soporte de condiciones generales contractuales, Navarra, 2003, pp. 69-113.