Collective Commentary about the New Package Travel Directive

ARTICLE 24 | AFONSO RIBEIRO CAFÉ 493 n.º 2006/2004, Directive 2011/83/EU and repealing Council Directive 90/314/ /EEC 6 , stated the enforcement rule in article 22, with exactly the same wording. In a version of package travel and assisted travel arrangements Directive, amending Regulation (EC) No 2006/2004, Directive 2011/83/EU and repealing Council Directive 90/314/EEC, dated of 21 May 2015 7 , we can read a European Parliament amendment addition, as follows: “Member States shall furthermore ensure that adequate mechanisms are in place to ensure that no misleading practices from traders or organisers are in place, in particular creating an expectation on the part of consumer of rights and guarantees that are not provided for in the relevant contract” . This amendment, however, has not been included in the final version of the Directive. 3. SYSTEMATIC TREATMENT: HARMONISATION, IMPERATIVE NATURE, PENALTIES AND ENFORCEMENT CLAUSES One of the most important matters in European Union legislation is the concern with harmonisation of norms and practices. This concern is mostly evident in legislative instruments in areas such as the field of consumer law. It is undeniable that strong harmonisation is a way to enhance transparency and legal certainty 8 . However, we believe that full harmonisation can subvert the definition of the Directive as Union’s juridical instrument 9 , because it undermines the freedom of means which are granted to the Member States in order to adapt their legal system to the new EU legislation 10 . 6 COM/2013/0512 final – 2013/0246 (COD), in https://eur-lex.europa.eu/LexUriServ/Lex UriServ. do?uri=COM:2013:0512:FIN:EN:PDF. 7 (COM(2013)0512; 2013/0246(COD)), in http://www.europarl.europa.eu/meetdocs/2014_2019/ documents /imco/dv/package_travel_column_doc_/package_travel_column_doc_en.pdf. 8 About this issue, vid. erga omnes Feliu S. (2018) Viajes combinados y servicios de viaje vinulados [Directiva (UE) 2015/2302] Cuestiones de ley aplicable, Coleccion de derecho de turismo (ed.) Tur, N. Reus Editorial, Madrid and “Package travel and linked arrangements: International protection for traders and for travellers?” in Franceschelli V.;. Morandi F.; Torres C (Eds.), The New Package Travel Directive Directive , ESHTE/Inatel, (Estoril) Portugal, 2017, pp. 198-211. 9 For more information about this position, see Café A. (2017) “Package Travel Directive: Contractual parties and level of harmonization” in Franceschelli V.; Morandi F.; Torres C. (Eds.), The New Package Travel Directive Directive , ESHTE/Inatel, (Estoril) Portugal, pp. 345-363, also critical of the full harmonisation solution, Twigg- -Flesner, C., “Good-Bye harmonization by Directives, Hello Cross-Border only Regulation? – A way forward for EU Consumer Contract Law” http://ec.europa.eu/justice/news/consulting_public/0052/contributions/309_en.pdf, Smiths, J. (2010) “Full harmonization of consumer laws? A critique of the draft of the Directive on consumer rights”, European Revue of Private Law, 1, Kluver Law International BV, Great Britain, p. 7. 10 In violation somehow of article 288 of the Treaty on the Functioning of the European Union, which states that “ a Directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice about the form and the methods”.