Regulated Travel Arrangements
| Author | Matthew Chapman/Sarah Prager/Jack Harding/Dominique Smith/Thomas Yarrow/Henk Soede |
| Pages | 1-58 |
Chapter 1
Regulated Travel Arrangements
1.1 The ‘package travel contract’ has been the centrepiece of consumer protection in the holiday context since the inception of the Package Travel Directive 1990
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 [2015] OJ L 326/1.
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1.2 In broad terms, the purpose of this chapter is to take a detailed look at the scope of the Package Travel Regulations 2018. Accordingly, this chapter addresses the circumstances in which the Package Travel Regulations 2018 will not apply; the statutory meaning of ‘package travel contracts’; and the novel concept of the LTA.
THE FORMER REGIME UNDER THE PACKAGE TRAVEL DIRECTIVE 1990 AND THE PACKAGE TRAVEL REGULATIONS 1992
1.3 Before taking a detailed look at the provisions of the Package Travel Regulations 2018, it is necessary first to make some general comments on that which came before it. The Package Travel Regulations 1992 came into force on
23 December 1992 and will continue to apply to all regulated travel packages sold on or after 30 December 1992 and before 1 July 2018. The Regulations implemented, in the United Kingdom, the Package Travel Directive 1990. The purpose of the Directive was to achieve harmonisation of the laws relating to consumer protection within the European Union; to equalise the competitive position of tour operators within the European Union; and to ensure a minimum standard of consumer protection in the holiday context. At the time, the regulators were cognisant of the increasingly important economic role played by the travel industry in the economies of member states and clearly believed that the creation of uniform rules regulating package travel was likely to produce benefits not only for the consumer, but also for the travel industry throughout the European Union by attracting customers from outside the European Union seeking the advantages of guaranteed standards in packages which the regulatory framework provides.
1.4 The Directive and the Regulations did not, however, guarantee the standards of packages supplied to consumers by the industry. It is impossible for regulators to regulate in such a way as guarantees a perfect or even a satisfactory package every time. Rather, by regulating, the European Union provided uniform standards in respect of the remedies that should be available to consumers in the event that something goes wrong. This harmonisation of remedies ensured that service providers throughout the European Union operate on a reasonably equal footing, and it could be argued that the provision of harmonised remedies in member states, which make it easier for the consumer to take action in respect of poor services, was itself likely to lead indirectly to a reduction in the number of
occasions on which the consumer would have cause to complain against the tour operator. Putting it bluntly, the easier it is for the consumer to take action and succeed against a tour operator in respect of travel-related service complaints, the more likely it is that the tour operators or organisers will themselves exert pressure on their subcontractors to deliver a reasonable product. As can be seen below, however, the Package Travel Regulations 1992 and the Package Travel Directive 1990 left much to be desired and (perhaps unsurprisingly) the regulatory scheme quickly became outdated following dramatic changes in the means by which package holidays were bought and sold. In this respect, the framework introduced by the Package Travel Directive 2015 was a necessary step in the evolution of package travel law.
1.5 At the time of writing, there are still cases being brought under the Package Travel Regulations 1992. However, the vast majority of cases that will be brought before the courts in the next few years will concern the Package Travel Regulations 2018. Accordingly, this chapter focuses principally on the provisions contained in those Regulations. In view of the similarities between the two regimes, it is likely that cases decided under the Package Travel Regulations 1992 will be influential in the interpretation of the Package Travel Regulations 2018, and these older cases are flagged where relevant. Otherwise, readers are referred to previous editions of this work for a more detailed analysis of the Package Travel Regulations 1992.
THE NEW REGIME
1.6 For many (many) years there has been a general consensus that something must be done within the framework established by the Package Travel Directive 1990 because:
(a) Consumers are confused – very large numbers of them opt for holiday deals that leave them with little, if any, protection.
(b) There is confusion about the protection that is offered by the Package Travel Regulations 1992 (and it is often unclear whether what is sold is or is not a regulated package).
(c) The means by which holidays are sold to consumers have changed dramatically since the early 1990s (internet sales, dynamic packages and ‘click throughs’).
(d) Judges across the European Union have interpreted the Package Travel Directive 1990 in an inconsistent manner.
1.7 The Package Travel Directive 2015 was specifically designed to adapt the scope of protection to take account of the developments in the package travel
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market, to enhance transparency, and to increase legal certainty for travellers and traders.
1.8 Unlike the Package Travel Directive 1990, the Package Travel Directive 2015 expressly recognises that it is not ‘always easy to distinguish between consumers and representatives of small businesses or professionals who book trips related to their business or profession through the same booking channels as consumers’ and that ‘such travellers often require a similar level of protection’.
The protections provided to ‘consumers’ under the old regime are now extended to ‘business travellers’, including members of liberal professions, or self-employed and other natural persons, provided they do not make a travel arrangement on the basis of a ‘general agreement’.
1.9 A further point of difference concerns the extent to which member states are given discretion as to implementation of the legislative scheme. The Package Travel Directive 1990 gave member states a wide discretion and, unsurprisingly, this discretion was exercised liberally. The result was a significant degree of divergence between member states as to the regulatory provisions which applied to package travel contracts. The regulators learnt their lesson: the Package Travel Directive 2015 is a maximum harmonisation directive specifically purposed to prevent ‘legal fragmentation’ between member states.
Unless otherwise provided for in this Directive, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions which would ensure a different level of traveller protection.
1.10 So as to facilitate this harmonisation, the European Commission has held a number of Transposition Workshops with member states where legislative uncertainties were discussed and...
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