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23 rd IFTTA Worldwide Conference Toronto 2011 Marc Mc Donald Dublin Institute of Technology

23 rd IFTTA Worldwide Conference Toronto 2011 Marc Mc Donald Dublin Institute of Technology. Policy and Technical Issues regarding including Dynamic Packages in the Package Travel Directive ( IFTTA L aw Rev 2011, No 2) Or Should w ebsites be treated the same

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23 rd IFTTA Worldwide Conference Toronto 2011 Marc Mc Donald Dublin Institute of Technology

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  1. 23rd IFTTA Worldwide ConferenceToronto 2011 Marc Mc Donald Dublin Institute of Technology

  2. Policy and Technical Issues regarding including Dynamic Packages in the Package Travel Directive (IFTTA Law Rev 2011, No 2) Or Should websites be treated the same as tour operators?

  3. Background Reform of EU Package Travel Directive 1990 Desire to extend protection to consumers of dynamic packages (DP) EC commissioned Study on Consumer Detriment in the Area of Dynamic Packages, 2009 Pressure from tour operators worried about loss of business and ‘unfair’ compettion

  4. Challenges facing EU Commission • How to extend protection? • Definitions – extend/separate? • Protections (information, performance, insolvency) – extend/separate?

  5. Difficulties of legislating for Dynamic Packages Weak describtive power Dynamic? Package? Phrase assumes there is a package Wide range of scenarios now treated as DP’s, some without need for an organiser or a combination or for booking to be made at same time

  6. Proportionality To be valid an EU law must pass proportionality test It must promote a vital public policy, not discriminate oract in a dis-proportionate way, i.e. no less restrictive means available Information– no problem With contract performance - public policy is to protect consumer of DP against risks of DP

  7. Proportionality • Most proportionate way is to impose performance liability on supplier, not intermediary (website) • Except where website causes harm, fails to provide full information about its role and the product sold • Imposing liability when supplier is not in jurisdiction?

  8. Equal Treatment • Same entities must be treated the same and different entities must be treated differently • Are websites who sell travel/accommodation as agents the same as tour operators? • Legally, one is a principal and one is an agent • Commercially, they are different because … • Both tests must be passed by any legislative proposal

  9. Insolvency Protection • Probably satisfies both proportionality and equal treatment tests • But only for risks directly attributable to role of website as agent (holding payments by consumers) and where evidence of risk is real

  10. Alternative Approach? • Instead of trying to squeeze DP’s into the framework of package law, EC Commission should create a separate chapter dealing specifically with DP’s • Introduce a new concept of a ‘facilitator’ • But with only limited scope for imposing liability on website ‘facilitators’

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