Collective Commentary about the New Package Travel Directive

GERMANY | ERNST FÜHRICH 831 define the package travel only based on objective criteria of booking. The Directive intends, in Recital 8, to be in accordance with the judgement of Club Tour 23 . The Directive now names these objective criteria. As long as the elements of the booking process, as defined in Art. 3 II PTD, are present, there is a package travel. Conversely, there is no package travel when only two different types of travel services are booked separately and not in the same process. b) Separate bills (1) Retailer booking . The travel agencies in Germany are therefore in danger of becoming as liable as an organiser if they combine the travel services flight and hotel accommodation for a trip against their will. So scholars say, a retail booking is only possible if a flight is booked separately from the accommodation, with separate bills and separate payment 24 . It is also controversial, in Germany, whether the addition of the individual prices of separate booked travel services will lead to a package. The German government says there is a communication from the EU Commission. After that, paying the additional bill is no package, but a “linked travel arrangement” (§ 651w BGB). (2) Terms of delimitation . 651b BGB implements Art. 3 No. 2 lit. b PTD and lists three circumstances under which a trader becomes an organiser, despite the use of an intermediary clause in the terms and conditions. If the retailer does not state a total price or does not state the terms “package” or “all-inclusive” in one of the contracts, he or she will not change into the position of a responsible organiser. If single services are added by the trader and invoiced under a total amount, the trader is liable as an organiser 25 . The customer typically associates the total price with the product package. This discussion is not yet finished, and we are waiting, in Germany, for the first court judgments. 2. Linked online booking processes (1) Click-through bookings . The so-called “click-through bookings” also qualify as a travel package in § 651c BGB. § 651c BGB implements Art. 3 23 EuGH of 30.4.2002, C-400/00, RRa 2002, 119 comment by Führich, RRa 2002, 194; Führich, Dynamic Packaging und virtuelle Veranstalter, RRa 2006, 50. 24 Führich, RRa 2016, 210, 214; Führich/Staudinger, Reiserecht, §8 Rn. 3 ff., Tonner, MDR 2018, 305, 310; Staudinger/Ruks, RRa 2018, 2, 4; HK-BGB/Ansgar Staudinger, 10 th Ed. 2019, BGB § 651b Rn. 2; BeckOGH/ Meier, BGB § 651b Rn 2. 25 Führich, NJW 2017, 2945, 2947.