Getting to grips with the proposed Package Travel Directive

TravLaw partner Sarah Lacy tries to make sense of the new Package Travel Directive…

"We’ve got fed up of debating the whys and wherefores of the proposed Package Travel Directive published on Tuesday. It’s just too hot! We can’t say that we are too surprised at the contents, but there are a few interesting tweaks (if they come to fruition).

The changes that are likely to have the most significance of course relate to the extension of the definition of a ‘package’ to catch sales of multiple travel arrangements made otherwise than at an inclusive price; and the introduction of an intermediate category of ‘assisted travel arrangement’ which seems to catch sales of every other combination of two or more travel services facilitated by a retailer under separate contracts via a single point of sale or through linked online booking processes (so similar to a ‘flight plus’ but not necessarily having to include a flight).

Interestingly, the current draft of the proposal on a strict interpretation suggests that the Directive’s financial protection provisions will only to relate to ‘assisted travel arrangements’ and not ‘packages’. A real shocker if that’s intended to be the case, but we think that must surely be a drafting error and we expect it to get ironed out during the consultation process.

If so, it seems that the number of organisers and retailers (agents and principals) who will need to put financial protection arrangements in place for the first time once the Directive becomes law is set to increase dramatically.

There are a few unsurprising proposed changes to the information giving requirements which will require changes to the information that is given to consumers of packages pre-contract and will mean overhauls to booking conditions, brochures, websites and invoices in advance of the new law. The most notable of those is the obligation to notify a consumer that they are buying a package (something that isn’t actually that easy for an organiser to determine given the 2 paragraph, 5 sub-paragraph definition of what a package is)!

There’s also the new definition of ‘lack of conformity’ in place of the current ‘improper performance’, and it will be interesting to see whether this terminology gets carries through into the UK Regulations and if it does, whether it will be interpreted by the Courts to impose any stricter liabilities on an organiser. There is also an added proportionality element to any remedy given for a service lacking conformity which sounds optimistic; but then slightly confusingly, an obligation to also compensate for ‘non-material damage’. Curious. All will agree though that the proposed new loss of rights by consumers if they fail to complain would be a very welcome change.

Finally, a little note on the proposals from leftfield:

~· Financial protection and performance obligations may fall to an EU retailer if the organiser of a package/ assisted travel arrangement is outside the EU – that may actually affect more companies than one might expect, and will capture more unassuming agents into the bonding net.
~· A complaint to a retailer will start the clock against an organiser in terms of complaints handling – ouch!

So, plenty to chew on."