Collective Commentary about the New Package Travel Directive

754 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE not just economic damage. As a consequence of the new Directive, the Ministry argued that if a Member State was to consider the retailer the only one liable for economic damage, the retailer would still have to comply with the rules on protection against bankruptcy and insolvency. This extension of duties for the retailer compared to the former Danish Package Travel Act was not found desirable and, therefore, Denmark has abolished the economic liability for the retailer. Denmark has not used the opportunity granted in Article 13 of the new Directive to impose performance liability for the retailer either. According to the Danish Package Travel Act, Article 33, implementing Article 15 of the new Directive, the retailer has a duty to receive messages, requests and complaints regarding the performance of the package travel from the traveller on behalf of the organiser, and the retailer must forward these to the organiser without undue delay. In Denmark, the legal effect in regard to time limits, etc. is set to commence by the time of arrival at the retailer. It is not a requirement that the retailer has read or otherwise acquainted himself with the message, request or complaint 13 . This rule prevents the retailer from keeping himself intentionally ignorant. In regard to linked travel arrangements, Denmark has implemented the new Directive Article 19(3) in Article 37 of the Danish Package Travel Act and the retailer becomes liable, as if he was the organiser, if he fails to comply with his duties. In line with the retailer liability in regard to linked travel arrangements, it is to be assumed that the principle of presumption in general contract law applies as well. Thus, if the retailer, acting as an intermediary, fails to clarify that he is not the main contracting party (the organiser), then the traveller must assume that he is, and the retailer is thus legally to be regarded as the main contracting party 14 . In Denmark, quite strict requirements are put upon the intermediary to provide the consumer with information about his intermediary status. In the regional court case U 2018.574 V about an online intermediary platform providing plane tickets (which is not within the scope of the packet travel legislation), the court makes clear that not only must the intermediary provide information about his status but he must also make sure that the (average) consumer understand the consequences of the fact that the platform is only an intermediary. Otherwise (as in this case) the intermediary digital platform becomes liable as if he was the seller, like in the case of the airline’s bankruptcy. 13 Preparatory work of the new Danish Package Travel Act, L 33, section 2.11.3. 14 In C-149/15 Wathelet the ECJ that an intermediary platform who gives the consumer the impression of being the seller can be regarded as such under the Sales Directive.