Tuesday, 11 May 2010

European Consumer Consultative Group on review of Package Travel Directive: broad scope, joint liability and no full harmonisation

The European Consumer Consultative Group (ECCG) has presented its opinion on the review of the Package Travel Directive. Some of the main conclusions: a particularly broad scope, joint liability and no full harmonisation.

The main reason for the European Commission to review the Directive, is to extend the scope of the Directive to adapt to changes in the market. Most notably this concerns the so-called ‘dynamic packages’, i.e. two or more services for a single holiday trip bought at the same time and from the same supplier, or from different suppliers that are economically linked, and are put together according to the consumer’s specific needs. These usually do not qualify as pre-arranges travel packages in the sense of Article 2 of the Directive.

In the light thereof, the ECCG advises a particularly broad scope of the revised Directive:

‘[T]he ECCG calls upon the Commission to take the opportunity of the review of the PTD to extend its scope such as to cover the widest possible number of different travel services. In this respect, dynamic packages should be covered, not only when they are concluded with the same company, but also when, via a “click through” on the website of one company, the consumer is redirected to the website of another company. In this case, the first company acts as an intermediary and should be held liable as any other travel agent. Also, there should be track keeping of this “click through” in the contract concluded with the second company.
Similarly, the situation where a tour operator provides accommodation only in his advertising material should be covered by the review, bearing the same liability as any other tour operator.’

The ECCG also proposes joint liability of the seller and organiser/tour operator:

‘[T]he ECCG calls upon the Commission to introduce a system of joint liability of the seller and the organiser/tour operator, towards the consumer. In any case, the travel organiser should, in terms of chain of responsibility, always be considered to be liable and should not be able to transfer the liability to the seller only. In parallel, there must be a clear indication in the regulatory text that the liability regime for travel business is that of a strict/no fault liability.’

Not surprisingly, the ECCG opposes the possibility of the Package Travel Directive becoming a full harmonisation instrument:

‘Full harmonisation will not bring an increase in cross-border sales, as it is observed that language barriers, as well as lack of proper enforcement measures at cross-border level are the most problematic barriers in the travel sector. On the other hand, the experience gathered with PTD has sufficiently shown that national developments in the area of consumer travel can vary considerably. It is therefore essential that, on the basis of a common regulatory framework that makes it possible for companies to design services more and more in a harmonized way within the EU, Member States must be granted the right to continue to regulate their market on the basis of the expectations of their domestic consumers and, even more, to quickly intervene if new developments in their travel services market call for such an intervention to protect consumers.’

Some of the further proposals are:
  • guidelines on the calculating of compensation and the inclusion of moral damages
  • a prohibition on price modification once the contract is concluded
  • the possibility for the consumer to cancel the contract without costs in case of force majeure
  • a right of withdrawal in distance selling of travel services

For the full ECCG opinion, click here.

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