ANALYSIS OF DIRECTIVES ON CONSUMER PROTECTION – EU FUNDED

Package travel and linked travel arrangements (Directive 2015/2302)

1. PURPOSE OF THE DIRECTIVE

Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC («Directive») aims at contributing to the proper functioning of the internal market and to the achievement of a high and as uniform as possible level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States in respect of contracts between travellers and traders relating to package travel and linked travel arrangements

LEVEL OF HARMONIZATION: Article 4 provides that the Directive is a maximum harmonization Directive unless expressly stated otherwise in the Directive.

SCOPE: The Directive applies to packages offered for sale or sold by traders to travellers and to linked travel arrangements facilitated by traders for travellers. A “trader” is any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by the Directive, whether acting in the capacity of organiser, retailer, trader facilitating a linked travel arrangement or as a travel service provider. In accordance with the definitions of the Directive:

  • The Organiser is a trader who combines and sells or offers for sale packages, either directly or through another trader or together with another trader, or the trader who transmits the traveller’s data to another trader in accordance with Article 3(2)(b)(v)(2).
  • A Retailer is a trader other than the organiser who sells, or offers for sale packages combined by an organiser.

A package in accordance with the Directive, means a combination of at least 2 different types of travel services for the purpose of the same trip or holiday provided that:

  • those services are combined by one trader, including at the request of or in accordance with the selection of the traveller, before a single contract on all services is concluded; or
  • irrespective of whether separate contracts are concluded with individual travel service providers, those services are:
  • purchased from a single point of sale and those services have been selected before the traveller agrees to pay,
  • offered, sold or charged at an inclusive or total price,
  • advertised or sold under the term ‘package’ or under a similar term,
  • combined after the conclusion of a contract by which a trader entitles the traveller to choose among a selection of different types of travel services, or
  • purchased from separate traders through linked online booking processes where the traveller’s name, payment details and e-mail address are transmitted from the trader with whom the first contract is concluded to another trader or traders and a contract with the latter trader or traders is concluded at the latest 24 hours after the confirmation of the booking of the first travel service.

In relation to the definition of “travel service”, in accordance with Article 3(1), this may be either of the following:

  • carriage of passengers;
  • accommodation which is not intrinsically part of carriage of passengers and is not for residential purposes;
  • rental of cars, other motor vehicles within the meaning of Article 3(11) of Directive 2007/46/EC of the European Parliament and of the Council (16), or motorcycles requiring a Category A driving licence in accordance with point (c) of Article 4(3) of Directive 2006/126/EC of the European Parliament and of the Council (17);
  • any other tourist service not intrinsically part of a travel service within the meaning of points (a), (b) or (c);

In case the combination of travel services where not more than one type of travel service is combined with one or more tourist services as referred to in Article 3(1)(d) this is not a package in case the services of Article 3(1)(d):

(a) do not account for a significant proportion of the value of the combination and are not advertised as and do not otherwise represent an essential feature of the combination; or
(b) are selected and purchased only after the performance of a travel service as referred to in point 3(1)(a),(b) or (c) of point 1 has started;

 

PACKAGE TRAVEL CONTRACT: In accordance with the Directive, a package travel contract, is a contract on the package as a whole or, if the package is provided under separate contracts, all contracts covering travel services included in the package. In accordance with judgement C-400/00 the term covers trips which are organised by a travel agent following the request of and in accordance with the specifications of a consumer or limited group of consumers.

LINKED TRAVEL ARRANGEMENT: It is important to note that the Directive covers, in addition to packages, linked travel arrangements. Article 3(5) of the Directive interprets a linked travel arrangement as at least two different types of travel services purchased for the purpose of the same trip or holiday, not constituting a package, resulting in the conclusion of separate contracts with the individual travel service providers, if a trader facilitates:

(a) on the occasion of a single visit or contact with his point of sale, the separate selection and separate payment of each travel service by travellers; or

 

(b) in a targeted manner, the procurement of at least one additional travel service from another trader where a contract with such other trader is concluded at the latest 24 hours after the confirmation of the booking of the first travel service.

Where not more than one type of travel service as referred to in Article 3(1)(a),(b) or (c) and one or more tourist services as referred to in Article 3(1)(d) are purchased, they do not constitute a linked travel arrangement if the latter services do not account for a significant proportion of the combined value of the services and are not advertised as, and do not otherwise represent, an essential feature of the trip or holiday.

WHERE THE DIRECTIVE DOES NOT APPLY: According to Article 2(2), the Directive does not apply in the following circumstances:

(a) packages and linked travel arrangements covering a period of less than 24 hours unless overnight accommodation is included;

 

(b) packages offered, and linked travel arrangements facilitated, occasionally and on a not-for-profit basis and only to a limited group of travellers;

 

(c) packages and linked travel arrangements purchased on the basis of a general agreement for the arrangement of business travel between a trader and another natural or legal person who is acting for purposes relating to his trade, business, craft or profession.

NATIONAL LAW: National law which relates to the rules of validity, formation or effect of a contract do not affect the Directive (Article 2(3)).

IMPERATIVE NATURE OF THE DIRECTIVE: Article 23 states that the nature of the Directive is imperative and a declaration by an organiser of a package or a trader facilitating a linked travel arrangement that he is acting exclusively as a travel service provider, as an intermediary or in any other capacity, or that a package or a linked travel arrangement does not constitute a package or a linked travel arrangement, shall not absolve that organiser or trader from the obligations imposed on them under this Directive. Also travellers may not waive the rights conferred on them by the national measures transposing this Directive.

 

2. SUBSTANTIVE PROVISIONS

2.1.                PROVISION OF INFORMATION

2.1.1.                     INFORMATION PRIOR TO THE CONCLUSION OF THE CONTRACT

By Article 5, the organiser and, where the package is sold through a retailer, also the retailer must provide the traveller with the standard information by means of the relevant form as set out in Part A or Part B of Annex I, in a clear, comprehensible and prominent manner:

(a) the main characteristics of the travel services:

(i) the travel destination(s), itinerary and periods of stay, with dates and, where accommodation is included, the number of nights included;

 

(ii) the means, characteristics and categories of transport, the points, dates and time of departure and return, the duration and places of intermediate stops and transport connections.

Where the exact time is not yet determined, the organiser and, where applicable, the retailer shall inform the traveller of the approximate time of departure and return;

 

(iii) the location, main features and, where applicable, tourist category of the accommodation under the rules of the country of destination;

 

(iv) the meal plan;

 

(v) visits, excursion(s) or other services included in the total price agreed for the package;

 

(vi) where it is not apparent from the context, whether any of the travel services will be provided to the traveller as part of a group and, if so, where possible, the approximate size of the group;

 

(vii) where the traveller’s benefit from other tourist services depends on effective oral communication, the language in which those services will be carried out; and

 

(viii) whether the trip or holiday is generally suitable for persons with reduced mobility and, upon the traveller’s request, precise information on the suitability of the trip or holiday taking into account the traveller’s needs;

 

(b) the trading name and geographical address of the organiser and, where applicable, of the retailer, as well as their telephone number and, where applicable, e-mail address;

 

(c) the total price of the package inclusive of taxes and, where applicable, of all additional fees, charges and other costs or, where those costs cannot reasonably be calculated in advance of the conclusion of the contract, an indication of the type of additional costs which the traveller may still have to bear;

 

(d) the arrangements for payment, including any amount or percentage of the price which is to be paid as a down payment and the timetable for payment of the balance, or financial guarantees to be paid or provided by the traveller;

 

(e) the minimum number of persons required for the package to take place and the time-limit, referred to in point (a) of Article 12(3), before the start of the package for the possible termination of the contract if that number is not reached;

 

(f) general information on passport and visa requirements, including approximate periods for obtaining visas and information on health formalities, of the country of destination;

 

(g) information that the traveller may terminate the contract at any time before the start of the package in return for payment of an appropriate termination fee, or, where applicable, the standardised termination fees requested by the organiser, in accordance with Article 12(1);

 

(h) information on optional or compulsory insurance to cover the cost of termination of the contract by the traveller or the cost of assistance, including repatriation, in the event of accident, illness or death.

 

Under the provisions of the Directive, for travel contracts concluded by telephone, the organiser, and where applicable, the retailer must provide the traveller with the standard information set out in Part B of Annex I, and the information set out in Article 5(1)(a) to (h).

Based on Article 5(2), where the package is of the type mentioned in Article 3(2)(b)(v), the organiser and the trader to whom the data are transmitted ensures that each of them provides, before the traveller is bound by a contract or any corresponding offer, the information set out in Article 5(1)(a) to (h) depending on the respective travel services they offer. The organiser also provides, at the same time, the standard information by means of the form set out in Part C of Annex I.

In accordance with Article 6(1), the organiser, and where applicable, the retailer shall communicate all changes to the pre-contractual information to the traveller in a clear, comprehensible and prominent manner before the conclusion of the package travel contract.

Where the organiser and, where applicable, the retailer has not complied with the information (as stated in Article 5(1)(c)) then Article 6(2) states that the traveller shall not bear those fees, charges or other costs.

BURDEN OF PROOF: The burden of proof that the information requirements have been complied with, is on the trader.

 

2.1.2.                     OTHER INFORMATION REQUIREMENTS CONNECTED WITH THE ORGANISED TRAVEL ARRANGEMENT

MANDATORY CHARACTER OF THE INFORMATION: According to Article 6(1), the information of Article 5(1)(a),(c),(d),(e) and (g) form an integral part of the package travel contract and cannot be altered unless the contracting parties expressly agree otherwise.

COPY OF THE CONTRACT AND REQUIREMENTS: Article 7(1) states that package travel contracts are in plain and intelligible language and, in so far as they are in writing, legible. At the conclusion of the package travel contract or without undue delay thereafter, the organiser or retailer shall provide the traveller with a copy or confirmation of the contract on a durable medium.

The traveller is entitled to request a paper copy if the package travel contract has been concluded in the simultaneous physical presence of the parties. In relation to off-premises contracts, a copy or confirmation of the package travel contract must be provided to the traveller on paper or, if the traveller agrees, on another durable medium.

By Article 7(2), the contract also includes the information of Article 5(1)(a) to (h) as well as the following information:

(a) special requirements of the traveller which the organiser has accepted;

 

(b) information that the organiser is:

(i) responsible for the proper performance of all travel services included in the contract in accordance with Article 13; and
(ii) obliged to provide assistance if the traveller is in difficulty in accordance with Article 16;
(c) the name of the entity in charge of the insolvency protection and its contact details, including its geographical address, and, where applicable, the name of the competent authority designated by the Member State concerned for that purpose and its contact details;
(d) the name, address, telephone number, e-mail address and, where applicable, the fax number of the organiser’s local representative, of a contact point or of another service which enables the traveller to contact the organiser quickly and communicate with him efficiently, to request assistance when the traveller is in difficulty or to complain about any lack of conformity perceived during the performance of the package;
(e) information that the traveller is required to communicate any lack of conformity which he perceives during the performance of the package in accordance with Article 13(2);
(f) where minors, unaccompanied by a parent or another authorised person, travel on the basis of a package travel contract which includes accommodation, information enabling direct contact with the minor or the person responsible for the minor at the minor’s place of stay;
(g) information on available in-house complaint handling procedures and on alternative dispute resolution (‘ADR’) mechanisms pursuant to Directive 2013/11/EU of the European Parliament and of the Council (18), and, where applicable, on the ADR entity by which the trader is covered and on the online dispute resolution platform pursuant to Regulation (EU) No 524/2013 of the European Parliament and of the Council (19);
(h) information on the traveller’s right to transfer the contract to another traveller in accordance with Article 9.

Article 7(3) states that where the package is of a type mentioned in Article 3(2)(b)(v), the trader shall inform the organiser of the conclusion of the contract leading to the creation of a package. The trader must also provide the organiser with the information necessary to comply with his obligations as an organiser. As soon as the organiser is informed that a package has been created, the organiser shall provide to the traveller the information referred to in Article 7(2)(a) to (h) on a durable medium.

INFORMATION TO BE PROVIDED PRIOR TO THE START OF THE PACKAGE: Article 7(5), states that prior to the start of the package, the organiser must provide the traveller with the necessary receipts, vouchers and tickets, information on the scheduled times of departure and, where applicable, the deadline for check-in, as well as the scheduled times for intermediate stops, transport connections and arrival.

BURDEN OF PROOF: The burden of proof that the information requirements have been complied with, is on the trader.

2.2.                OTHER OBLIGATIONS

2.2.1.                     CHANGES TO THE CONTRACT PRIOR TO THE START OF THE PACKAGE

TRANSFER OF THE PACKAGE TRAVEL CONTRACT TO ANOTHER TRAVELLER: According to Article 9, a traveller (“the transferor”) who gives reasonable notice prior to the start of the package (7 days are considered reasonable) in a durable medium that they will transfer the package travel contract to another person (“the transferee”), may do so provided that the transferee satisfies all the conditions applicable to that contract.

The organiser must then provide the transferor with proof of the additional fees, charges or other costs arising from the transfer of the package travel contract provided that these are reasonable and do not exceed the actual cost incurred by the organiser due to the transfer of the package travel contract.

Article 9(2) creates a joint and several obligation on the transferor and transferee for the balance due, and for any additional fees, charges or other costs arising from the transfer.

ALTERATION OF THE PRICE: Article 10 gives the right to increase the price only where the traveller has a parallel right of decrease. An increase in the price is possible only when the increase is a direct consequence of changes in:

(a) the price of the carriage of passengers resulting from the cost of fuel or other power sources;
(b) the level of taxes or fees on the travel services included in the contract imposed by third parties not directly involved in the performance of the package, including tourist taxes, landing taxes or embarkation or disembarkation fees at ports and airports; or
(c) the exchange rates relevant to the package.

Also, in the case of an increase in the total price of the package of more than 8%, then the provisions of Article 11(2) and (5) of the Directive apply which provide for the modification of the terms of the contract (supra next 2 paragraphs).

The price increase shall be possible only if the organiser notifies the traveller clearly and comprehensibly of it with a justification for that increase and a calculation, on a durable medium at the latest 20 days before the start of the package.

In accordance with Article 10(5), in case of a price reduction, the organiser shall have the right to deduct actual administrative expenses from the refund owed to the traveller. At the traveller’s request, the organiser shall provide proof of those administrative expenses.

ALTERATION OF OTHER PACKAGE TRAVEL CONTRACT TERMS: Article 11(1) states that the organiser may not unilaterally change package travel contract terms unless (a)
the organiser has reserved that right in the contract; (b) the change is insignificant; and (c) the organiser informs the traveller of the change in a clear, comprehensible and prominent manner on a durable medium.

Articles 11(2) and 11(5) states that whenever an organiser prior to the start of the package is constrained to alter significantly any of the main characteristics of the travel services as referred to in Article 5(1)(a) or cannot fulfil the special requirements as referred to Article 7(2)(a), or proposes to increase the price of the package by more than 8 %, the traveller may within a reasonable period specified by the organiser:

(a) accept the proposed change; or

 

(b) terminate the contract without paying a termination fee.

If the package travel contract is terminated and the traveller does not accept a substitute package, the organiser shall refund all payments made by or on behalf of the traveller without undue delay and in any event not later than 14 days after the contract is terminated. (Article 11(5))

The organiser, in case of changes in the terms, must without undue delay inform the traveller in a clear, comprehensible and prominent manner on a durable medium of:

(a) the proposed changes and their impact on the price of the package;

 

(b) a reasonable period within which the traveller has to inform the organiser of his decision to accept a change or terminate the contract (and/or select another package);

 

(c) the consequences of the traveller’s failure to respond within the period referred to point (b), in accordance with applicable national law; and

 

(d) where applicable, the offered substitute package and its price.

In case the changes to the travel package result in a package of lower quality or cost, the traveller shall be entitled to an appropriate price reduction.

Finally, and in accordance with Article 11(5), in case that the consumer terminates the contract due to a change in its terms where the change is significant and in case the consumer does not accept another package, then the organiser must refund all payments made by or on behalf of the traveller without undue delay and in any event not later than 14 days after the contract is terminated.

TERMINATION OF THE CONTRACT:

  • FROM THE TRAVELLER: In accordance with Article 12, the traveller may terminate the package travel contract at any time before the start of the package. Where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. The package travel contract may specify reasonable standardised termination fees based on the time of the termination of the contract before the start of the package and the expected cost savings and income from alternative deployment of the travel services. In the absence of standardised termination fees, the amount of the termination fee must correspond to the price of the package minus the cost savings and income from alternative deployment of the travel services. At the traveller’s request the organiser shall provide a justification for the amount of the termination fees.

The only case where a charge cannot be imposed on the traveller, is in the case of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination. In such a case, the traveller is entitled to a full refund of any payments made for the package, but shall not be entitled to additional compensation.

  • FROM THE ORGANISER: The Organiser also has the right to terminate the package travel contract and provide the traveller with a full refund of any payments made for the package in case the former is prevented from performing the contract because of unavoidable and extraordinary circumstances. In such case the organiser must notify the traveller of the termination of the contract without undue delay before the start of the package.
  • In the case of contracts with a minimum number of passengers, the organiser must notify the traveller of the termination of the contract within the period fixed in the contract, but not later than:
(i) 20 days before the start of the package in the case of trips lasting more than six days;

 

(ii) seven days before the start of the package in the case of trips lasting between two and six days;

 

(iii) 48 hours before the start of the package in the case of trips lasting less than two days;

 

In the abovementioned cases, the organiser must provide the traveller with a full refund of any payments made for the package but is not liable for additional compensation.

RIGHT OF WITHDRAWAL: The only case where a genuine right of withdrawal is mentioned is Article 12(5). The Article is not mandatory in nature but it states that:

“With respect to off-premises contracts, Member States may provide in their national law that the traveller has the right to withdraw from the package travel contract within a period of 14 days without giving any reason.”

2.2.2.                     PERFORMANCE OF THE PACKAGE

PERFORMANCE OF THE PACKAGE: By virtue of Article 13, the Member States 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. Also, 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 such case, Article 7 and 9-12 apply to the retailer.

TRAVELLER LIABILITY: According to Article 13(2) the traveller must inform the organiser immediately (without undue delay) in relation to any lack of conformity which he perceives during the performance of a travel service included in the package travel contract.

ORGANISER LIABILITY: In such a case, the organiser must remedy the lack of conformity, unless that is impossible or it entails disproportionate costs, taking into account the extent of the lack of conformity and the value of the travel services affected. In the last two instances, Article 14 applies. Otherwise, Article 13(4) is applicable which states that:

“if the organiser does not remedy the lack of conformity within a reasonable period set by the traveller, the traveller may do so himself and request reimbursement of the necessary expenses. It shall not be necessary for the traveller to specify a time-limit if the organiser refuses to remedy the lack of conformity or if immediate remedy is required.”

OTHER OBLIGATIONS: In accordance with Article 13(5), when a large number of a significant proportion of the travel services cannot be provided as agreed in the package travel contract, the organiser must offer, at no extra cost to the traveller, suitable alternative arrangements of equivalent or higher quality than those specified in the contract (if that is possible), for the continuation of the package, including where the traveller’s return to the place of departure is not provided as agreed. Where this results in a package of lower quality than that specified in the package travel contract, the organiser shall grant the traveller an appropriate price reduction.

The traveller reserves the right to reject the proposed alternative arrangements only if they are not comparable to what was agreed in the package travel contract or the price reduction granted is inadequate.

In the cases where the lack of conformity substantially affects the performance of the package and the organiser has failed to remedy it within a reasonable period set by the traveller, the traveller may terminate the package travel contract without paying a termination fee and, where appropriate, request, in accordance with Article 14, price reduction and/or compensation for damages.

Where the traveller rejects the proposed alternative arrangements or where the alternative arrangement is impossible, the traveller is allowed to a price reduction and/or compensation in accordance with Article 14 without terminating the package travel contract.

If the package includes the carriage of passengers, the organiser shall, in the cases referred to in the first and second subparagraphs, also provide repatriation of the traveller with equivalent transport without undue delay and at no extra cost to the traveller.

IMPOSSIBILITY OF RETURN: According to Article 13(7):

“If it is impossible to ensure the traveller’s return as agreed in the package travel contract because of unavoidable and extraordinary circumstances, the organiser shall bear the cost of necessary accommodation, if possible of equivalent category, for a period not exceeding three nights per traveller. Where longer periods are provided for in Union passenger rights legislation applicable to the relevant means of transport for the traveller’s return, those periods shall apply”

Article 13(7) does not apply to persons with reduced mobility, and any person accompanying them, pregnant women and unaccompanied minors, as well as persons in need of specific medical assistance, provided that the organiser has been notified of their particular needs at least 48 hours before the start of the package.

REDUCTION OF THE PRICE AND COMPENSATION: Article 14, provides for a reduction in the price and the compensation allowed by the consumer. The Member States shall ensure that the traveller is entitled to an appropriate price reduction for any period during which there was a lack of conformity, unless the organiser proves that the lack of conformity (a) is attributable to the traveller or (b) attributable to a third party unconnected with the provision of the travel services included in the package travel contract and is unforeseeable or unavoidable or (c) is due to unavoidable and extraordinary circumstances.

Where the lack of conformity is due to the fault of the organiser, then, under Article 14(2), the traveller shall be entitled to receive appropriate compensation from the organiser for any damage which the traveller sustains as a result of any lack of conformity. The compensation is made without undue delay.

In accordance with the case law of the ECJ, Article 14 allows the consumer the right to be compensated for any moral damage which is due to the lack of conformity or non execution of the organised trip from the organiser or the trader.[1]

According to Article 14(6), the limitation period for introducing claims under this Article must not be less than two years.

OBLIGATION OF THE ORGANSIER TO PROVIDE ASSISTANCE: Article 16 states that Member States ensure that the organiser gives appropriate assistance without undue delay to the traveller in difficulty, in the following ways:

(a) providing appropriate information on health services, local authorities and consular assistance; and

 

(b) assisting the traveller to make distance communications and helping the traveller to find alternative travel arrangements.

 

The same Article states that the organiser shall be able to charge a reasonable fee for such assistance if the difficulty is caused intentionally by the traveller or through the traveller’s negligence. It is to be noted however that such fee must not exceed the actual costs incurred by the organiser.

COMPLAINT MADE TO THE RETAILER: Article 15 states that Member States ensure that the traveller may address messages, requests or complaints in relation to the performance of the package directly to the retailer through which it was purchased. The retailer shall forward those messages, requests or complaints to the organiser without undue delay.

For the purpose of compliance with time-limits or limitation periods, receipt of the messages, requests or complaints referred to in the first subparagraph by the retailer shall be considered as receipt by the organiser.

2.2.3.                     INSOLVENCY PROTECTION

INSOLVENCY PROTECTION: Articles 17 and 18 refer to the protection of the traveller in the case where the organiser becomes insolvent.

Article 17 states that Member States ensure that organisers established in their territory provide security for the refund of all payments made by or on behalf of travellers insofar as the relevant services are not performed as a consequence of the organiser’s insolvency. If the carriage of passengers is included in the package travel contract, organisers shall also provide security for the travellers’ repatriation.

In case organisers are not established in a Member State but sell or offer for sale packages in a Member State, or they, by any means direct such activities to a Member State, they shall be obliged to provide the security in accordance with the law of that Member State.

NATURE OF THE GUARANTEE: According to case C-134/11, the scope of application of Article 17, includes the case where the insolvency of the organiser is also attributable to its own fraudulent behaviour.[2]

SCOPE OF THE GUARANTEE: The guarantee of Article 17(2) covers all costs which are  reasonably foreseeable and it also covers the amounts of payments made by or on behalf of travellers in respect of packages, taking into account the length of the period between down payments and final payments and the completion of the packages, as well as the estimated cost for repatriations in the event of the organiser’s insolvency.

Also, Article 17(3) states that regardless of the place of residence of the traveller, the place of departure or where the package is sold and irrespective of the Member State where the entity in charge of the insolvency protection is located, the traveller is offered with the same protection in relation to insolvency. It should be noted that the guarantee must cover the accommodation of the traveller prior to repatriation as well as any refunds for travel services which have not been performed without undue delay after the traveller’s request.

Article 18(1) states that Member States shall recognise as meeting the requirements laid down in the Directive when an organiser provides such measures.

In relation to traders who facilitate linked travel arrangements, Article 19 states that they must provide security or the refund of all payments they receive from travellers insofar as a travel service which is part of a linked travel arrangement is not performed as a consequence of their insolvency. If such traders are the party responsible for the carriage of passengers, the security shall also cover the traveller’s repatriation. It is also important to note that the trader who facilitates linked travel arrangement is always responsible to inform the traveller that he:

(a) will not benefit from any of the rights applying exclusively to packages under this Directive and that each service provider will be solely responsible for the proper contractual performance of his service; and

 

(b) will benefit from insolvency protection.

In case that the trader does not do so, then the rights and obligations mentioned in Articles 9 and 12 as well as Article 13 to 16 apply.

Finally, in accordance with Article 19(4), a linked travel arrangement is the result of the conclusion of a contract between a traveller and a trader who does not facilitate the linked travel arrangement, that trader shall inform the trader facilitating the linked travel arrangement of the conclusion of the relevant contract.

3. OTHER GENERAL PROVISIONS

WHEN THE ORGANISER IS OUTSIDE THE EEA: In accordance with Article 20, where the organiser is established outside the European Economic Area, the retailer established in a Member State shall be subject to the obligations laid down for organisers in Chapters IV and V (i.e. Articles 13 to 18), unless the retailer provides evidence that the organiser complies with those Chapters.

LIABILITY FOR BOOKING ERRORS: By Article 21, a trader who has agreed to arrange the booking of a package or of travel services which are part of linked travel arrangements, he shall be responsible for the errors made during the booking process.

RIGHT OF REDRESS: Article 22 states that where an organiser or a retailer pays compensation, grants price reduction or meets the other obligations incumbent on him under the Directive, Member States shall ensure that the organiser or retailer has the right to seek redress from any third parties which contributed to the event triggering compensation, price reduction or other obligations.

4. OBLIGATIONS OF MEMBER STATES

In accordance with Article 25, Member States take all necessary measures to lay down and implement rules on penalties applicable to infringements of national provisions adopted pursuant the Directive. The penalties provided for shall be effective, proportionate and dissuasive.

 

5. OTHER RELEVANT PROVISIONS

In accordance with Article 27, Regulation (EC) No 2006/2004 is amended and in accordance with Article 29 Directive 90/314/EEC is repealed with effect from 1 July 2018.

[1] C-168/00 – Simone Leitner v. TUI Deutschland GmbH & Co. KG

[2]  C-134/11 Jürgen Blödel-Pawlik v. HanseMerkur Reiseversicherung AG

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Evripides Hadjinestoros Lawyer
Evripides is a partner at a law firm and the founder of the Cyprus Center for Alternative Dispute Resolution. After completing his law degree, LLB at the Queen Mary University of London in 2009, he completed his master's degree in LLM corporate law at University College London. He graduated with Distinction. In 2016, Evripides published the book "Sale of Goods and Consumer Protection in Cyprus". He has taught and teaches extensively on issues related to commercial and consumer law at the European University of Cyprus.