Collective Commentary about the New Package Travel Directive

ARTICLE 1 | F. JAVIER MELGOSA ARCOS 83 Directive 90/314 / EEC of 13 June 1990, concluding that “It must be interpreted in the sense that, in principle, it gives the consumer a right to be compensated for moral damage resulting from the non-performance or improper performance of the services constituting a package”. Adding that “it should be noted that the Directive, and in particular Article 5 thereof, is intended to give protection to consumers and, in the context of tourism trips, the compensation for the damage caused by loss of the holiday has a special relevance for them”. 2.7. Tourist protection against insolvency The Directive provides in Chapter V, the forecasts for the “effectiveness and scope of insolvency protection” (Article 17), on the one hand, and the “mutual recognition of insolvency protection and administrative cooperation” (art. 18) on the other. That is, on the one hand, sets more specific criteria on the scope of protection and, on the other, tries to facilitate cross-border transactions. With the aim of protection from insolvency to be effective, it should cover the foreseeable amounts of payments affected by the organiser’s insolvency and, where applicable, the foreseeable cost for repatriations. This means that the protection should be sufficient to cover all foreseeable payments made by or on behalf of travellers in respect of packages in peak season, taking into account the period between receiving such payments and the completion of the trip or holiday, as well as, where applicable, the foreseeable cost for repatriations. Whereas the necessary cover may be calculated on the basis of the most recent business data, for instance the turnover achieved in the last business year, organisers should be obliged to adapt the insolvency protection in the event of increased risks, including a significant increase in the sale of packages. However, effective insolvency protection should not have to take into account highly remote risks, for instance the simultaneous insolvency of several of the largest organisers, where to do so would disproportionately affect the cost of the protection, thus hampering its effectiveness. In such cases the guarantee for refunds may be limited. An organiser’s insolvency protection shall benefit travellers regardless of their place of residence, the place of departure or where the package is sold and being irrespective of the Member State where the entity in charge of the insolvency protection is located. In line with Directive 2006/123/EC, it is appropriate to lay down rules so as to prevent insolvency protection obligations from acting as an obstacle to the free movement of services and the freedom of establishment. Therefore, Member States should be obliged to recognise insolvency protection under the law of the