Collective Commentary about the New Package Travel Directive

LITHUANIA | DANGUOLĖ BUBLIENĖ AND IEVA NAVICKAITĖ-SAKALAUSKIENĖ 993 side or presents himself as an agent acting for the traveller” 30 . Further, the preamble clarifies that “Directive 90/314/EEC has given discretion to the Member States to determine whether retailers, organisers or both retailers and organisers are liable for the proper performance of a package. That flexibility has led to ambiguity in some Member States as to which trader is liable for the performance of the relevant travel services. Therefore, it should be clarified in this Directive that organisers are responsible for the performance of the travel services included in package travel contract, unless national law provides that both the organiser and the retailer are liable” 31 . These ideas are reflected in Article 13 (1) of the Travel Directive 32 . It seems that Lithuania did not introduce the rule under which the travel retailer is responsible, alongside with the tour organiser, for the performance of the package. First of all, the Article 18 (3) (1) of the Law on Tourism establishes that the travel retailer must conclude, on behalf of the tour organiser, the package travel contracts with tourists, following the arrangements provided for in Article 6 of the Law on Tourism. Secondly, there is no direct rule in the law that states that both the organiser and the retailer are liable and, at the same time, there is no rule corresponding the requirements of the Article 13 (1) of the Travel Directive, i.e. reference to the application of the national provisions, implementing provisions of Article 7 and Chapters III, IV and V of the Travel Directive to the travel retailer. Furthermore, it should be mentioned that the question of whether the travel retailer, mutually with the organiser, can be held responsible was raised in the jurisprudence of the Supreme Court of Lithuania, however, the Court denied such interpretation. The general principle, applied in the practice of the Supreme Court, is that the organiser is responsible for the actions of the third parties, with whom he collaborates when performing the services, included in package travel contract 33 . The Court has stated that the organiser, as a business party, must not only bear the risk of the negative consequences of his activities, but must also carefully select third parties to fulfil 30 Paragraph 22 of the preamble of the Travel Directive. 31 Paragraph 23 of the preamble of the Travel Directive. 32 Article 13 (1) indicates that: “Member States shall ensure that the organiser is responsible for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers. Member States may maintain or introduce in their national law provisions under which the retailer is also responsible for the performance of the package. In that case the provisions of Article 7 and Chapter III, this Chapter and Chapter V which are applicable to the organiser shall also apply mutatis mutandis to the retailer”. 33 The ruling of the Supreme Court of Lithuania, 10 of May 2010, case No. 3K-3-201/2010; ruling 18 of July 2008, case No. 3K-3-386/2008.