Collective Commentary about the New Package Travel Directive

494 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The new Package Travel Directive states in article 4: “Unless otherwise provided for in this Directive, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions which would ensure a different level of traveller protection.”. The choice of the EU legislator on adopting the full harmonisation option is clear 11 . This concern of the Directive with harmonisation must interpreted together with article 23, which states that: 1. A declaration by an organiser of a package or a trader facilitating a linked travel arrangement that he is acting exclusively as a travel service provider, as an intermediary or in any other capacity, or that a package or a linked travel arrangement does not constitute a package or a linked travel arrangement, shall not absolve that organiser or trader from the obligations imposed on them under this Directive. 2. Travellers may not waive the rights conferred on them by the national measures transposing this Directive. 3. Any contractual arrangement or any statement by the traveller which directly or indirectly waives or restricts the rights conferred on travellers pursuant to this Directive or aims to circumvent the application of this Directive shall not be binding on the traveller. This provision addresses the traveller directly and puts at stake the very legal notion of the Directive, stating that: the traders, when they deal in packages or linked travel arrangements, cannot escape from their obligations, which are mandatory on them according to the Directive, even if they claim to act just as a mere travel service provider, intermediary or other. On the other hand, travellers cannot waive the rights conferred by the national legal norms transposing Directive, neither can any contractual arrangement or statement directly or indirectly waive or restrict the rights conferred by the Directive to the traveller, as such stipulations shall not bind the traveller. 11 We criticise this option, Café. A. Ob. Cit and “A Directiva (UE) 2015/2302 do Parlamento Europeu e do Conselho na integração em rede da União Europeia no setor do Turismo”, Revista Internacional de Derecho del Turismo (RIDETUR), Vol. 1, n.º1, (2017), p. 25 and Führich, E. (2017) “The Implementation of the new Package Travel Directive in Germany and its Critical Issues in Franceschelli V.; Morandi F.; Torres C. (Eds.), The New Package Travel Directive Directive , ESHTE/Inatel, (Estoril) Portugal, pp. 101-112.