«Package Travel Contracts: Remarks on the European Community Legislation Stefano Zunarelli∗ ∗ Copyright c 1993 by the authors. Fordham ...»
Fordham International Law Journal
Volume 17, Issue 3 1993 Article 2
Package Travel Contracts: Remarks on the
European Community Legislation
Copyright c 1993 by the authors. Fordham International Law Journal is produced by The Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
Package Travel Contracts: Remarks on the
European Community Legislation
Although Directive No. 90/314 has had some positive effects, albeit inferior to prior expectations, the new legislation has proven innovative in legally qualifying the positions of all subjects involved in package travel. An analysis of each provision shows the dramatic impact that the Directive has had on the conclusions reached by Italian doctrine and jurisprudence on the basis of the national and international applicable regulations. Directive No. 90/314 represents a notable improvement in the protection of the consumer/traveler. While the Community Directive accomplishes the aim of harmonizing legislation within the Member States, Directive No. 90/314 by no means intends to be exhaustive.
PACKAGE TRAVEL CONTRACTS: REMARKS
ON THE EUROPEAN COMMUNITY
I. Content of the Directive: Comparison Between the Notions of "Organizer" and "Retailer" and Between the Notions of "Organizing Travel Agent" and "Intermediary Travel Agent" According to the Brussels Convention
II. Organic Character of the Directive: The Most Significant Improvements Vis-t-Vis The Provisions Contained in the CCV
III. The Policy of Liability Framed in Directive No. 90/ 314: Its Derivation From the Concept of Liability for Entrepreneurial Risk
IV. The Organizer's and the Retailer's Position: Joint and Several Liability or Alternative Liability......... 499 V. Limitations of the Organizer's and the Retailer's Liability
VI. Considerations Regarding the Implications of the Directive's Discipline in Relation to the Organizer and the Intermediary/Retailer
VII. Considerations Concerning the Immediate Applicability of the Directive
INTRODUCTIONLegal experts have recently noted changes that have been introduced by European Community ("EC" or "Community") institutions in regulating transportation. In December 1986, for example, the EC Commission approved Regulations that constituted the first systematic attempt to harmonize maritime compe
tition law.' The same tendency has been observed in the regulation of aviation law. In the past, strict aviation laws resulted in a rigid distribution of routes, as well as bilateral administrative control of tariffs. Current regulations, however, provide larger free competition areas for the airlines.
Council Directive No. 90/314 ("Directive No. 90/314" or "the Directive") of June 13, 19902 on package travel, package holidays and package tours is evidence of the increased contribution of Community institutions in framing regulations in the area of transport law. Prior to this Directive, Community legislative organs had only intervened in regulating conditions and access to the different forms of carriage. With Directive No. 90/ 314, the Community has, for the first time, expressed its intent to affect directly the content of carriage contracts addressing specific sectors. According to its preamble, Directive No. 90/314 was adopted to increase the level of the rights and contractual obligations of travel package consumers.3 Although Directive No. 90/314 has had some positive effects, albeit inferior to prior expectations, the new legislation has proven innovative in legally qualifying the positions of all subjects involved in package travel. An analysis of each provision shows the dramatic impact that the Directive has had on the conclusions reached by Italian doctrine and jurisprudence on the basis of the national and international applicable regulations.
I. CONTENT OF THE DIRECTIVE: COMPARISON BETWEEN
THE NOTIONS OF "ORGANIZER" AND "RETAILER" AND
BETWEEN THE NOTIONS OF "ORGANIZING TRAVEL AGENT"
AND "INTERMEDIARY TRAVEL AGENT" ACCORDING TO THE
BRUSSELS CONVENTIONDirective No. 90/314, notwithstanding the adoption of different terminology, 4 refers to the same classifications as in the
1. Commission Regulation No. 4057/86, O.J. L 378/14 (1986).
2. Council Directive No. 90/314, OJ. L 158/59 (1990).
3. See id. preamble, O.J. L 158/59, at 59-60 (1990) (citing EC attempts to regulate tourism, focusing on harmonization of Member State legislation, consumer protection and establishment of guidelines for Community tourism policy).
4. The wording chosen by the Community legislators reveals inaccuracy in the use of legal terminology. One example of this lack of precision in the language is the definition of "package," which consists of the phrase "offered for sale at an inclusive price."
Council Directive No. 90/314, art. 2(1), OJ. L 158/59, at 60 (1990).
19941 PACKAGE TRAVEL CONTRACTS Brussels Convention of April 23, 1970 (the "CCV") concerning travel contracts.5 In particular, the definition of "package, ' in Directive No. 90/314 corresponds directly to "the organized travel contract" 7 as defined in the CCV. Both provisions emphasize performance, which is the object of the contract, and the conditions for determining the consideration due to the organizer. The only difference between Article 2(1) of Directive No.
90/314 and Article 1(2) of the CCV is that a more limited application of the Directive provision exists which exclusively regulates services whose performance "covers a period of more than twenty-four hours or includes overnight accommodation."8 In terms of the object of the travel contract, both legislative texts specify that the object must consist of a pre-arranged combination of no fewer than two elements - either transport and accommodation or transport and other tourist services not ancillary to transport or accommodation.' The performances that comprise the contract's object, refer to the transport of the traveler, 1 to the traveler's lodging,11 and to other tourist services not ancillary to transport and accommodation.
A proper interpretation of Directive No. 90/314, that the "tourist service" connected to transport or accommodation must account for a significant portion of the package, remains ambiguous. From a literal reading of the text, the provisions of Directive No. 90/314 could be considered inapplicable to contracts in which transportation is connected to another service, whose economic incidence is negligible. Such a reading of the provision, however, might lead to unacceptable results. Consider, for exInternational Convention on Travel Contracts, Apr. 23, 1970, reprinted in 9 I.L.M 699 (1970) [hereinafter CCV].
6. Council Directive No. 90/314, art. 2(1), 0.J. L 158/59, at 60 (1990).
7. CCV, supra note 6, art. 1(2), 9 I.L.M. at 699.
8. Council Directive No. 90/314, art. 2(1), O.J. L 158/59, at 60 (1990); CCV, supra note 6, art. 1(2), 9 I.L.M. at 699.
9. Council Directive No. 90/314, art. 2(1)(c), 0.J. L 159/59, at 60 (1990); CCV, supra note 6, art. 1(2), 9 I.L.M. at 699.
10. "Consumer," in the language of Directive No. 90/314, is defined as'... the person who takes or agrees to take the package.., or any person on whose behalf the principal contractor agrees to purchase the package...or any person to whom the principal contractor or any of the other beneficiaries transfers the package.... " Council Directive No. 90/314, art. 2(4), O.J. L 158/59, at 60 (1990).
11. "Accommodation," is the language used in Directive No. 90/314. Id. art.
2(1)(b), 0J. L 158/59, at 60 (1990).
12. Id. art. 2(1)(c), O.J. L 158/59, at 60 (1990).
492 FORDHAMINTERNATIONAL LAWJOURNAL [Vol. 17:489 ample, a contract made by a group of opera amateurs to attend an opera performance. In this instance, the ticket price will be negligible compared to the transportation costs. Since the consumers have entered into the contract primarily to attend the opera performance, however, it would be absurd to deprive the consumers of any legal protection under Directive No. 90/314.
The "significance" of the tourist services, mentioned in Article 2(1) (c) of the Directive, must be determined on a case-by-case basis.13 The determination of whether a particular consumer deserves protection should rest on a judicial interpretation of the consumer's principal interest.
Another source of ambiguity in Directive No. 90/314 concerns the "inclusive price," which means the agreed total amount for complete performance of the contract by the travel organizer. 14 In the last part of Article 2(1) of the Directive, the legislators appropriately indicates that "[t] he separate billing of various components of the same package shall not absolve the organizer or retailer from the obligations under the Directive."1 5 It appears contradictory to oppose the notion of a global uniform price for the package. As a matter of fact, the Community legislators, who also referred to the CCV, stressed that the "inclusive price" for the organizer does not have to be formally intended, but substantively, as the assumption of an economic risk by the organizer in rendering his service.1 6 Comparing the classification of subjective standards, as observed before, Article 2(a) and Article 2(2) of the Directive and
14. Id. art. 2(1), O.J. L 158/59, at 60 (1990). The Directive's preamble states that, the price established under the contract should not in principle be subject to...
revision except where the possibility of upward or downward revision is expressly provided for in the contract.... " Id. preamble, O.J. L 158/59, at 60 (1990). Furthermore, the text of the Directive states The prices laid down in the contract shall not be subject to revision unless the contract expressly provides for the possibility of upward or downward revision and states precisely how the revised price is calculated, and solely to allow for variations in [transportation costs, dues, taxes, fees and exchange rates].
Id. art. 4(4)(a), OJ. L 158/59, at 61 (1990).
15. Id. art. 2(1), OJ. L 158/59, at 60 (1990).
16. Eddy Wymeersch, Le contrat touristique: Etude de la convention sur le contrat de
Voyage, in RAPPORTS BELGES AU IXE CONGRIS DE L'ACADtMIE INTERNATIONALE DE DROITcOMPARk 201, 205-07 (Jean Limpens ed., 1974). See Th~r~se R. Houle, Le rigimejuridique des agences de voyages, 17 CAHIERS DE DROIT 353, 363-66 (1976) (discussing role of travel organizer); Arato, Le Condizioni Generali di Contratto ed i Viaggi Turistici Organizzati, in I RIWSTA DI DIlRIro COMMERCIALE 376 (1982) (discussing package travel contracts).
19941 PACKAGE TRAVEL CONTRACTS Article 1 (2) and Article 1 (5) of the CCV express the same notion with regard to the "package organizer," although they use different terms. Nevertheless, the "retailer," as designated in the Directive, and the "intermediary travel agent," in the CCV, differ from one another.
First, Directive No. 90/314 does not require that the "retailer" engage in regular activity. "Non occasional" activity, however, is required both in the Directive"7 and in the CCV for the "organizer."'" There might be cases, therefore, where a subject is qualified as a "retailer" under the Directive, but is not included in the notion of a "intermediary travel agent" under the CCV. The disparity between the Directive and the CCV is evident in the case of a sport franchise, which offers a package arranged by a professional organizer, giving fans the opportunity to attend a game played abroad. The sport franchise, although not characterized as an "intermediary travel agent," according to the CCV, will be regarded as a "retailer" under the Directive.
Additionally, the activity of a subject who works as a intermediary tour agent is relevant in the Directive only when the intermediary also participates in supplying the package or, to use the definition adopted in the CCV, when he intervenes in the conclusion of an "organization travel contract."1 9 The Directive, unlike the CCV, does not cover situations in which the "intermediary" intervenes in supplying "une ou des prestation isol6es permettant d'accomplir un voyage ou un s6jour quelconque" (one or more isolated performances that allow to make one trip or any accommodation)." The role of "retailer" necessarily includes another subject who has assumed the role of "organizer."
17. Council Directive No. 90/314, art. 2(2), O.J. L 158/59, at 60 (1990).
18. The CCV uses the wording "habitually or regularly" for "non-occasional" activity. CCV, supra note 5, art. 1(5), 9 I.L.M. at 699.
19. Id. art. 1(1), 9 I.L.M. at 699.
20. A different conclusion could be reached following article 2(1) of Directive No.
90/314, which states, "[t ] he separate billing of various components of the same package shall not absolve the organizer or retailer from the obligations under this Directive."
Council Directive No. 90/314, art. 2(1), O.J. L 158/59, at 60 (1990). From a literal reading of this provision, it could be assumed that, in order to have a "package," it is necessary to consider the offered performances in their entirety, required to compute the consideration, regardless of any separate billing. As a consequence, the mediator, who offers a plurality of separate, yet coordinated performances, would be regarded as an "organizer," not as a "retailer." This literal interpretation of art 2(1), however, conflicts with the general spirit of the Directive.
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