Collective Commentary about the New Package Travel Directive

772 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE 3.6. Liability for the performance of the package and available remedies Liability for non-performance of contractual obligations and available remedies can be found in the general part of Estonian LOA 32 . Estonian LOA was structured so that general rules on remedies in case of non-performance of obligations can be found in the general part of the LOA (§§ 100-140) 33 and are applicable in cases where there are no specific rules provided for in special part of LOA. Liability for the performance of the travel services provided for in the Art. 13 of the Directive is transposed into §§ 875, 876 and 877 of the LOA. According to the Art. 13(1) of the Directive Member States shall ensure that the organiser is responsible for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers. This general principle is transposed into Estonian law in § 877(1) of the LOA. Member States could decide during the transposition of the Directive whether to extend the liability of the package tour operator to the intermediary in accordance with the Art. 13 (1) of the Directive. In Estonia, liability of the retailer was already adapted during the transposition of the Directive 90/314/EEC. So, the rule provided in § 866(4) of the LOA that a person providing travel services shall not rely on the terms and conditions of the contract according to which the person only intermediates individual travel services (retailer) without being a tour operator if, based on the advertising, catalogues or other circumstances of entry into the contract, the other party to the contract may reasonably consider the person to be a tour operator, was not changed. Traveller’s entitlement to have problems resolved and suitable arrangements offered as remedy in the form of specific performance depend on the knowledge of travel operator or retailer of the lack of conformity of the performance of the package travel contract. According to the § 886(1) of the LOA, the traveller must notify the tour operator or retailer immediately of any violations of the contract. Right of the traveller to send messages, requests or complaints in relation to the performance of the package travel directly to the retailer through 32 See more on the regulation of responsibility and remedies in the Law of Obligations Act in P. Varul. Legal policy, p. 109; V. Kõve. Draft Common Frame of Reference and Estonian Law of Obligations Act: Similarities and Differences in the System of Contractual Liability. Juridica International 14, 2008, pp. 199-208. 33 For example, § 101(1) of the LOA consist of list available remedies: 1) require performance of the obligation; 2) withhold performance of an obligation which is due from the oblige; 3) demand compensation for damage; 4) withdraw from or cancel the contract; 5) reduce the price; 6) in the case of a delay in the performance of a monetary obligation, demand payment of a penalty for late payment.