Collective Commentary about the New Package Travel Directive

710 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE agreed price. The traveller had right to a withdrawal without the obligation to compensate for the damage and with a right to a refund of the paid balance 41 . In case there was a significant alteration of important contractual terms, the traveller had the right to withdraw, with no obligation to compensate for the damage or the incurred costs, or he or she was allowed to take a substitute package with no obligation to pay any additional money 42 . With respect to various other rights and obligations of the contracting parties not expressly provided for in the package travel contracts, general provisions of the Obligations Act on contracts were subsidiarily applied, such as the provisions on the application of the statutes of limitation, the liability for damage, the nullity of a contract, convalidation of the contract because of the lack of a written form 43 , rescission of a contract for non-fulfilment and the like. In addition, there was a subsidiary application of the provisions of the former Tourism Services Act of 2007 to the package travel contract. A particularly important provision of the former Tourism Services Act was the one defining the concepts of the “traveller” and the “travel agency”. The Obligations Act, in its provisions on package travel contracts, did not expressly define the concepts of the “traveller” and the “organiser of the package”. The concept of the “traveller” was defined in the former Tourism Services Act as a person providing tourist services, a person for whose account and/or on whose behalf a tourist service was provided, or any person to whom the right of using a tourist service was transferred 44 . The former Tourism Services Act did not provide for the concept of the “organiser of the package” but it only defined the concept of a “travel agency“which was actually considered to be the organiser of a travel pursuant to the provisions of the 41 Art. 900 para. 3 OA. 42 Art. 903 OA. 43 According to case law, a travel package contract not made in a written form is null and void. Pursuant to Art. 294.OA, such a contract is considered to be valid if the contracting parties have executed, fully or in large part, the obligations arising from the contract, unless it results otherwise from the purpose for which the form is prescribed. These conditions are deemed to have been met in a travel package contract not entered in a written form if the organiser of the journey organised the package and the traveller has fully consumed it, without having any complaints as to the offered service. See the decision of the County Court in Varaždin, Gž-2063/11-1 of 30/11/2011, published in Gorenc,V., Belanić,L., Momčinović,H., Perkušić,A., Pešutić,A., Slakoper,Z., Vukelić,M., Vukmir, B: o.c., p. 1369. 44 Art. 5, indent 2 of the former Tourism Services Act (2007). See Gorenc,V., Belanić,L., Momčinović,H., Perkušić,A., Pešutić,A., Slakoper,Z., Vukelić,M., Vukmir, B: o.c., p.1360.