The Tango Between Art.17(3) Brussels Ibis and Art.6(4)(b) Rome I under the Beat of Package Travel Directive
| Published date | 01 December 2021 |
| DOI | 10.1177/1023263X211048595 |
| Date | 01 December 2021 |
| Author | Zhen Chen |
| Subject Matter | Articles |
The Tango Between Art.17(3)
Brussels Ibis and Art.6(4)(b)
Rome I under the Beat of
Package Travel Directive
Zhen Chen *
Abstract
Package travel tourists are explicitly protected as consumers under Article 6(4)(b) Rome I, but not
under Article 17(3) Brussels Ibis since it does not even mention the term ‘package travel’. Such
discrepancy is widened with the replacement of Directive 90/314 by Directive 2015/2302 with
enlarged notion of package travel. As regards protecting package travel tourists as consumers
with favorable jurisdiction and applicable law rules, this article argues that Article 17(3)
Brussels Ibis is two steps behind Article 6(4)(b) Rome I. In order to close the gap, a uniform con-
cept of package travel should be given. To this end, it is suggested that Article 17(3) Brussels Ibis
should adopt the notion of package travel employed in Article 6(4)(b) Rome I. Despite this, these
two provisions only cover packages containing transport, as an exception of transport contracts.
Packages not including transport do not fall under the exception of transport contracts. Since all
package travel contracts should be protected as consumer contracts, regardless of containing
transport or not, it is more logical to delete the exception of transport contracts and create a
separate provision to protect package travel contracts as consumer contracts.
Keywords
International civil litigation, conflicts of laws, transport/carriage contract, consumer contract,
package travel tourist, package travel directive, weaker party protection, linked travel
agreements, harmonization, consumer protection
*Ulrik Huber Institute for Private International Law, University of Groningen, Groningen, the Netherlands
Corresponding author:
Zhen Chen, Ulrik Huber Institute for Private International Law, University of Groningen, Poststraat 11, 9712 ER,
Groningen, the Netherlands.
Email: zhen.chen@rug.nl
Article
Maastricht Journal of European and
Comparative Law
2021, Vol. 28(6) 878–899
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211048595
maastrichtjournal.sagepub.com
1. Introduction
It takes two to tango, one as a leader and another one as a follower. In order to present a beautiful
tango, the leader and the follower need to take consistent and harmonious moves under the beat of
background music. In the field of European private international law, Brussels Ibis Regulation
1
and
Rome I Regulation
2
are dancing partners that work closely with different roles. When it comes to
consumer protection in international litigation, Brussels Ibis Regulation is the leader and Rome I
Regulation is the follower, since the determination of competent courts precedes the determination
of applicable law. The protection of consumer contracts in European private international law was
first introduced by the 1968 Brussels Convention in its Articles 13–15 with beneficial jurisdiction
rules and then followed by Article 5 of the 1980 Rome Convention, the predecessor of Article 6
Rome I Regulation, on consumer applicable law rules with a broader scope of consumer contracts.
Currently, a consumer is entitled to sue the business, or to be sued by the business, in the courts of
the country of the consumer’s domicile (consumer forum)
3
and protected by the law of the consu-
mer’s country of habitual residence.
4
These favorable rules are based on the idea that consumers, as
the weaker contracting party, are in need of special protection under private international law.
5
Three conditions have to be met for the application of consumer private international law rules:
(i) there is a consumer, a professional and a concluded consumer contract; (ii) the business pursues
commercial or professional activities in the consumer’s country or directs such activities to that
country; (iii) the contract falls with the scope of such activities.
6
Moreover, not all kinds of con-
sumer contracts are protected, for instance, transport contracts are excluded from the scope.
7
Nevertheless, transport contracts which are part of a package travel contract, as an exception, are
protected as consumer contracts. Article 17(3) Brussels Ibis Regulation prescribes that Section 4
on consumer contracts ‘shall not apply to a contract of transport other than a contract which, for
an inclusive price, provides for a combination of travel and accommodation’. Likewise, Article
6(4)(b) Rome I Regulation stipulates that choice-of-law rules over consumer contracts ‘shall not
apply to a contract of carriage other than a contract relating to package travel within the
meaning of Council Directive 90/314
8
of 13 June 1990 on package travel, package holidays and
1. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters, also known as the Brussels Ia Regulation,
Brussels Recast Regulation, or Brussels I Regulation Recast. It repealed Regulation (EC) 44/2001(Brussel I Regulation),
the successor of Brussels Convention.
2. Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to
contractual obligations (Rome I Regulation).
3. Article 18(1) and Article 18(2) of Brussels Ibis Regulation.
4. Article 6(1) of Rome I Regulation.
5. Recital 18 of Brussels Ibis Regulation and Recitals 23–24 of Rome I Regulation.
6. Article 17(1) of Brussels Ibis Regulation and Article 6(1) of Rome I Regulation. Cases regarding the requirement of three
conditions, see Case C-774/19 A. B. and B. B. v. Personal Exchange International, EU:C:2020:1015; Case C-498/16
Schrems v. Facebook Ireland, EU:C:2018:37; Case C-419/11 C
̌
eská Spořitelna, a.s. v. Gerald Feichter, EU:
C:2013:165; Case C-218/12 Lokman Emrek v. Vlado Sabranovic, EU:C:2013:666; Case C-89/91 Shearson Lehmann
Hutton, Inc. v. TVB, [1993] ECR I-139; Case C-96/00 Gabriel v. Schlank & Schick GmbH, [2002] ECR I-6367;
Case C-27/02 Engler v. Janus Versand GmbH, [2005] ECR I-481; Case C-269/95 Francesco Benincasa v. Dentalkit
Srl, [1997] ECR I-3767; Case C-464/01 Johann Gruber v. BayWa AG, [2005] ECR I-439.
7. Article 17(3) of Brussels Ibis Regulation and Article 6(4)(b) of Rome I Regulation.
8. Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (1990 Package
Travel Directive).
Chen 879
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