Dear IFTTA members,
After many years of discussions, the new European Package Travel Directive has now been published in the Official Journal of the EU as “Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 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”.
There will be other, more detailed articles by distinguished experts dealing with this Directive and its implementation. For the purpose of this message I only want to highlight one small aspect which, however, seems to be symptomatic for this piece of European legislation.
At the IFTTA Europe Workshop 2010 in Moscow, IFTTA had worked out a paper on how to improve the ‘old’ Package Travel Directive from the perspective of proper legislative technique. This paper was handed over to the European Commission and IFTTA representatives attended two stakeholder meetings in Brussels to discuss the requirements and options for a new Package Travel Directive.
If we look at the new Directive, unfortunately, it seems that the extent to which the advice from IFTTA experts was taken into regard is rather small. In our paper, we had pointed out, for example, that the purpose of a “definition” is to determine the meaning of a certain term within a legal framework. Any proper definition therefore must comprise of all elements which determine the limits of the intended meaning but must not contain any element which has no relevance for these limits: everything which falls within the definition shall be covered by the meaning and anything which does not fall within the definition shall not be covered.
In the new Directive, the European legislators decided to substitute the term “force majeure” by “unavoidable and extraordinary circumstances”. The term “extraordinary circumstances” is already used in the European ‘Passenger Rights Regulations’ regarding different means of transport. These regulations, however, do not contain any definition of “extraordinary circumstances” which has resulted into various preliminary rulings of the Court of the European Union, in particular with regard to the Air Passenger Rights Regulation 261/2004. In the new Package Travel Directive, the definition of “unavoidable and extraordinary circumstances” in Article 3, para 12 reads as follows:
“a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken”.
This definition determines the meaning of “unavoidable” but does not make the least reference to “extraordinary” and thus fails to really define the full term “unavoidable and extraordinary circumstances” – unless you assume that “extraordinary” was only a word without any meaning in the context. More likely, it was simply forgotten by error to include a reference to “extraordinary” and “extraordinary” therefore has to be regarded an additional requirement. Anyway, the interpretation will have a huge impact on the scope of liability of the tour organiser. Again, the Court of the European Union might have the last word on the issue.
This small example shows the importance of good legislation and accurate wording. And it shows the role that IFTTA could play to achieve good legislation in tourism and travel law. It seems worthwhile for IFTTA to pick up on a proposal of the UNWTO Secretary General: to take part in a project to train legislators in proper techniques of legislation.