Collective Commentary about the New Package Travel Directive

BELGIUM | OLIVIER DUGARDYN 667 Article 55 of the Law adds: “Organisers not established in a Member State which sell or offer for sale packages in Belgium, or which by any means direct such activities to Belgium, shall be obliged to provide the security referred to in Article 54, in accordance with the terms and conditions provided for in Article 60.”. An interesting question arises regarding the scope of obligation of article 54, as imposed on retailers who are not established in Belgium and whose national law does not impose retailers to have insolvency protection. The question is absolutely not theoretical, as a large number of travel companies sell travel services to the Belgian customer, mostly online. Some of them do sell packages or single travel services as retailers. The lack of proper insolvency protection can lead to several sanctions, including criminal sanctions. According to the criteria set by the Court of Justice in Pammer 4 , such travel companies must in principle abide by the national law of the Member State to which they direct their sales. In other words, travel companies who sell or offer for sale travel services to consumers in Belgium must comply with insolvency protection rules. There is an unfortunate inconsistency in the Law, as article 54 is specifically directed at organisers and retailers established in Belgium while article 72 (with regard to the sale of single travel services) does not limit its application to organisers and retailers established in Belgium. Article 55 does not provide any help in this discussion, as it is directed at organisers and retailers who are not established in an EU Member State. This issue is currently being debated in a case pending before the Brussels Enterprise Court, where a large UK based OTA has been sued for selling online, to consumers in Belgium, packages of a Belgian organiser. 10. Right to withdraw. According to article 12 point 5 of the PTD, Member States may exclude the right for travellers to withdraw from the package travel contract within a period of 14 days without giving any reason. As in the past, there is no right to withdraw in the field of travel contracts under Belgian law. 4 CJEU, Pammer and Hotel Alpenhof, C585/08 and C144/09 http://curia.europa.eu/juris/document/document. jsf?text=&docid=83437&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part= 1&cid=3288067.