Collective Commentary about the New Package Travel Directive

ARTICLE 2 | JOSÉ ÁNGEL TORRES LANA 99 parties: it ensures a steady flow of business for the tourism trader, which is especially important in seasonal tourist destinations, and for the other person it secures much better terms, precisely because the tourism trader is assured of the regularity of the business. But the real reason for the exclusion is the business or professional nature of the travel. The other major requirement establishing the concept of a tourist is that the travel must not be for professional, business or employment reasons. As such, on the contrary, travel for these purposes excludes the idea of tourism. The comparison between those cases that are included and those that are excluded from the scope of application of the norm contributes to clarifying what its goal is. It seeks to protect the tourist-consumer, i.e. those who travel for more than 24 hours away from their habitual residence for reasons that are not professional or employment-related. 6. Point 3 of the article being examined contains a provision which is, in my opinion, unnecessary. It is drafted in a way that is at the very least questionable. It establishes that the Directive does not affect national general contract law such as the rules regarding the validity, formation or effect of a contract. But it concludes by saying that this shall be so where these aspects are not regulated in the Directive. What the rule states, however, is something that is well known. This is the pre-eminence of Community law over national law. In the case of a Directive – and this is also well known – the aforementioned pre-eminence is articulated indirectly, through the obligation of Member States to achieve the goals contained in the Directive. However, each state is free to choose the technical procedures of implementation or application. Thus, the interpretation of this rule is precisely the opposite of what the title seems to suggest. In effect, the Directive affects the internal national regulation of contract law in all the aspects it regulates (e.g. validity, formation or effectiveness), and it does so by establishing the general mandate for compliance by ordering its transposition into the legal system of each Member State by 1 January 2018, so that the new arrangements are fully applicable after 1 July of the same year [art. 28 (1) and (2)], respectively. And thus the Directive respects, i.e. it does not affect, any of the other rules governing the law of contracts which it does not itself regulate. As such, the rule of the Directive would benefit from being expressed in a different way: this Directive affects all matters of national contract law to which