Collective Commentary about the New Package Travel Directive

ARTICLE 2 | JOSÉ ÁNGEL TORRES LANA 95 established this, the norm makes no distinctions, as in the previous case, on the basis of the moment in time when the service is procured. As such, it is neutral as to whether the procurement has taken place prior to or subsequent to the commencement of the trip. What the norm requires – in a negative form – is that the service does not represent a significant proportion of the value of the combination, nor is it advertised as, nor does it constitute an essential characteristic thereof. There are two problematic words: the first is ‘significant’, with reference to the proportion of the value of the trip; the second is ‘essential’, with reference to the characteristic. These two concepts are vague, indeterminate and not easily determinable. Regarding the first, what percentage of the price may be considered significant? Yes, obviously 40% or 50%, and not 8% or 10%. But there is a wide margin between the minimum and maximum that allows for very different interpretations which have yet to be resolved, as far as I know. It might be easier to ascertain the meaning of ‘essential’, understood as being the defining motive for the trip (e.g. a trip to Egypt with a nocturnal excursion to the pyramids), i.e. that without which the trip would be meaningless. For this purpose it may be very useful to resort to two classical categories, even though in their Roman origins they referred to the elements constituting an item in Law, a thing. I refer to the ideas of ‘main’ and ‘accessory’, in accordance with which, as applied to the present situation, the absence of the main service makes the trip meaningless, whereas the absence of an accessory service does not have this effect. But once again on this point, it must be acknowledged that its subjectivity is nearly bottomless. This review of art. 3 of the Directive is merely an approximation. It is required by the peculiar structure of article 2, which is the true subject of this commentary. It is therefore subject to the better-informed commentary specific to art. 3. However, it should be pointed out that, at least in my opinion, this art. 3 does not deserve to be highly rated. There is a classic Spanish saying that states how ‘the best is the enemy of good’. The intention of the legislator in 2015 was to create the best definition, but this goal has not been met. It would have been better to achieve the more modest goal of drafting a good definition. As such, the definition contained in Directive 1990/314, which is much more general in its nature, is preferable, in my opinion. 4. The Directive applies to another form of travel, which is referred to as linked travel arrangements. This constitutes a new category which did not formally exist in Directive 1990/314. The present Directive makes a special distinction between this form of travel and package travel (paragraph five of the recitals).