Collective Commentary about the New Package Travel Directive

IRELAND | ANNE DOLAN 891 When transposing Article 5 of the 1990 Directive, Section 20(1) of the 1995 Act imposed strict liability solely on organisers of packages for the proper performance of the obligations arising from the contract. Section 20(2) of the 1995 Act further underpinned the organiser’s liability, whereby the organiser was liable to the consumer for any damage caused by the failure to perform the contract or the improper performance of the contract. Concerning the introduction of concurrent liability on the retailers for the performance of the package, Indecon, in its report accepted: “… that there are valid reasons for considering extending liability to retailers but we note that there are a number of potential problems with duplication. If organisers and retailers and the suppliers of single travel services could be held liable and each makes provision for this liability then costs would increase, to the detriment of travellers who would ultimately bear the cost. ” 42 . Indecon concluded that “ additional benefits for the consumer are likely to be very small, as the full liability in case of non-performance is allocated to the organiser. Consumer detriment should not be sought to be reduced beyond its initial total, and thus there would be potential added compliance costs of allocating portions of the liability, while the consumer would gain little, as they would already have full redress to one party, the organiser. Indecon’s assessment is that on balance, taking into account of existing Irish legislation and our evaluation of consumer detriment, not requiring retailers to be concurrently responsible for the performance of the contract would be the appropriate option .” 43 . This was very much at one with submissions which had been made by stakeholders in the travel sector. The ITAA contended that the existing liability regime had not displayed any evidence of consumer detriment to warrant making the retailer liable, in addition, to the organiser 44 . Ultimately, the Irish government accepted Indecon’s recommendation and the discretion afforded by the second paragraph of Article 13.1 to make the retailer, as well as the organiser responsible for the performance, was not exercised.The liability regime as provided for under the 1995 Act was maintained, whereby liability for the performance of the package continues to rest with the organiser. 42 Page 36 the Indecon report (see footnote 15). 43 Page 24 the Indecon report (see footnote 15). 44 See Footnote 32.