that because of the increasing use of the internet, many travel services became “grey
zones” and fall outside the scope of the previous Directive. Therefore, there was a
strong necessity to adopt a new Directive that would fill in the gaps and provide a
better legal regime and high protection of the consumers of this market.
One of the novelties of the Directive is the distinction of packages from linked
travel arrangements. It applies to three types of packages, such as pre-arranged
packages, customized packages and linked travel arrangements. It applies to packages offered for sale or sold by trader to travelers and to linked travel arrangement
facilitated by traders for travelers. However, there are certain limitation as stated in
Article 1(2). In cases the packages and linked travel arrangements last for less than
24 h unless overnight accommodation if included, the Directive does not apply. It
also does not apply when it is offered occasionally and on a not-for-profit basis to a
limited group of travelers and those that are purchased based on a general agreement
for the arrangement of business travel.
According to the Directive, the travel service includes carriage, accommodation,
rental cars and any other service. Moreover, the package should include at least two
different types of travel services. Due to this, it can be presumed that there is a
potential of overlapping with existing international conventions and even EU Regulations on passengers’ rights. In the view of this author, the most contentious
provision is stated in Article 14 that deals with compensation for damages. It is
provided that the traveler is entitled to compensation from the organizer for any
damage sustained by the traveler for any lack of conformity. It can be admitted that
the phrase “any damage” can be interpreted in different ways by national courts, and
might even include compensation for non-material damage, which can in turn
conflict with e.g. Montreal Convention, which does not provided compensation for
non-material damage. However, the organizer might be relieved to pay the compensation if the lack of conformity is attributable to the travel or a third party
unconnected with the provision of the travel service or due to unavoidable and
extraordinary circumstances.
In order to cope with a potential conflict between the Directive and existing
international conventions or EU Regulations a provision was inserted that the
Directive will not affect the rights of traveler provided under these instruments.
Since the traveler has a choice to present a claim under any of the suitable instrument, it is stated that any overcompensation should be avoided. It is submitted that
even though this provision might facilitate possible conflict of norms, it will not
solve it completely. It will be only evident once the Court of Justice interprets its
provisions in its judgments.
The Directive has already boosted a number of comments and criticisms from
various stakeholders and legal scholars.
33 The implications of the new Directive
provoke further discussion and at the moment it is difficult to say whether there will
be any conflicts with the existing international regime on passengers or respective
33 The European Travel Agents’ and Tour Operators’ Associations, The Revision of the package
travel Directive: ECTAA’s Position Paper.
A Critical Analysis of Carriage of Passengers by Sea: Uniformity. . .
73
zones” and fall outside the scope of the previous Directive. Therefore, there was a
strong necessity to adopt a new Directive that would fill in the gaps and provide a
better legal regime and high protection of the consumers of this market.
One of the novelties of the Directive is the distinction of packages from linked
travel arrangements. It applies to three types of packages, such as pre-arranged
packages, customized packages and linked travel arrangements. It applies to packages offered for sale or sold by trader to travelers and to linked travel arrangement
facilitated by traders for travelers. However, there are certain limitation as stated in
Article 1(2). In cases the packages and linked travel arrangements last for less than
24 h unless overnight accommodation if included, the Directive does not apply. It
also does not apply when it is offered occasionally and on a not-for-profit basis to a
limited group of travelers and those that are purchased based on a general agreement
for the arrangement of business travel.
According to the Directive, the travel service includes carriage, accommodation,
rental cars and any other service. Moreover, the package should include at least two
different types of travel services. Due to this, it can be presumed that there is a
potential of overlapping with existing international conventions and even EU Regulations on passengers’ rights. In the view of this author, the most contentious
provision is stated in Article 14 that deals with compensation for damages. It is
provided that the traveler is entitled to compensation from the organizer for any
damage sustained by the traveler for any lack of conformity. It can be admitted that
the phrase “any damage” can be interpreted in different ways by national courts, and
might even include compensation for non-material damage, which can in turn
conflict with e.g. Montreal Convention, which does not provided compensation for
non-material damage. However, the organizer might be relieved to pay the compensation if the lack of conformity is attributable to the travel or a third party
unconnected with the provision of the travel service or due to unavoidable and
extraordinary circumstances.
In order to cope with a potential conflict between the Directive and existing
international conventions or EU Regulations a provision was inserted that the
Directive will not affect the rights of traveler provided under these instruments.
Since the traveler has a choice to present a claim under any of the suitable instrument, it is stated that any overcompensation should be avoided. It is submitted that
even though this provision might facilitate possible conflict of norms, it will not
solve it completely. It will be only evident once the Court of Justice interprets its
provisions in its judgments.
The Directive has already boosted a number of comments and criticisms from
various stakeholders and legal scholars.
33 The implications of the new Directive
provoke further discussion and at the moment it is difficult to say whether there will
be any conflicts with the existing international regime on passengers or respective
33 The European Travel Agents’ and Tour Operators’ Associations, The Revision of the package
travel Directive: ECTAA’s Position Paper.
A Critical Analysis of Carriage of Passengers by Sea: Uniformity. . .
73