Collective Commentary about the New Package Travel Directive

770 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE price of the package exceeds eight per cent of the total cost of the package, the traveller may either accept the proposed change or terminate the contract. It seems that wording used in § 872(2) of the LOA that consumer’s right to terminate the contract or accept the replacement are available only if alteration of contract terms was caused by objective reasons, may not be in accordance with the purpose of the Directive. The Directive does not regulate the consequences of failure to respond to the proposed alterations within a reasonable period and leaves this to the discretion of the Member States. The Estonian legislator decided that as far as this is allowed only in cases where the organiser of the tour was constrained on objective reasons to change the main characteristics of the travel service, the most reasonable consequence would be that the passenger is deemed to have accepted the alterations if there is no response 29 . The obligation of the tour operator to refund all payments in accordance to the Art. 11(5) of the Directive is transposed into § 872(6) of the LOA. In accordance to the Art. 4 of the Directive, Member States shall not maintain provisions including more stringent provisions in their national law. Estonian law provides that in the case of termination of the contract interest shall be paid on money refunded as of the moment of receipt of the money (§ 189(1) LOA). As this is not provided for in the Directive, it may be interpreted as more stringent provision than in the Directive. However, if the travel organiser fails to refund the money on time, the right to claim interest for late payment as remedy for non-performance shall be available to the traveller. It has to be added that in Estonian law, the maximum amount of contractual interest rate on late payment is not limited by the law. If there is no interest rate agreed upon in the contract, the legal interest rate on late payments shall be applied (§ 113(1) LOA) 30 . The organiser of the tour as legal or natural person engaged in economic or professional activities may not rely on an agreement which restricts the right to claim legal interest for late payment provided for in § 113 (1) of the LOA, while this agreement seems to be grossly unfair with regard to the traveller taking into account the purpose of the Directive. In accordance to the Art. 9 of the Directive Member State shall ensure that a traveller may transfer the package travel contract to a person who satisfies all the 29 Silence or inactivity can be declaration of intention only if so prescribed by law or an agreement as provided for in § 68(4) of the GPCCA. 30 The legal interest rate is specified on a half-year basis and shall be equal to the last interest rate applicable to the main refinancing operations of the European Central Bank before 1 January or 1 July of each year (§ 94(1) LOA) plus eight per cent per year.