Collective Commentary about the New Package Travel Directive

992 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE “together with another trader” is changed by the wording “together with a travel retailer”. Therefore, Lithuanian legislation includes only one type of cooperation between the traders – cooperation between travel organiser and travel retailer. That means that Lithuanian Law narrowed the definition of the travel organiser. Practically, it might be that some persons who are ad hoc travel organiser will not fall into the definition of the travel organiser. Moreover, the Law on Tourism does not use the term “trader” and does not transpose Article 21 (1) of the Travel Directive. Hence, one might argue whether it is the legal background to treat the trader as a travel organiser, if the trader acts on ad hoc basis and does not formalise his activity, as regulated in the Law on Tourism, and since the law establishes such formal requirements. If this argument made sense, the travellers could lose their protection under the Directive. However, in this context, it should be noted that the Supreme Court of Lithuania, in its practice, has already interpreted the notion of the organiser not formally, but rather in a broader sense 29 . The Supreme Court of Lithuania, in one of the cases, has stated that they must have in mind the purpose of the legislator to protect the rights of the consumers, using tourism services. The fact that the defendant, who was obliged to act as an organiser, has failed to satisfy the requirements set in the Law onTourism, not acquiring the status of the organiser, should not be interpreted as an exemption from his obligation to properly perform the functions of the organiser. Thus, the Supreme Court of Lithuania, in its jurisprudence, based on regulation transposing the old Travel Directive, in the relation of organiser and traveller, did not use a feature of a formalised activity as being necessary, in order to accurately qualify the contract relation and to resolve contractual liability issues. The personal scope of application is also related to the travel retailer liability issue. As the preamble explains “the main characteristic of a package is that there is one trader responsible as an organiser for the proper performance of the package as a whole. Only in cases where another trader is acting as the organiser of a package should a trader, typically a high street or online travel agent, be able to act as a mere retailer or intermediary and not be liable as an organiser. Whether a trader is acting as an organiser for a given package should depend on that trader’s involvement in the creation of the package, and not on how the trader describes his business. When considering whether a trader is an organiser or retailer, it should make no difference whether that trader is acting on the supply 29 The ruling of the Supreme Court of Lithuania, 17 May 2011, case No. 3K-3-239/2011.