On 1st July 2018, the Package Travel and Linked Travel Arrangements Regulations 2018 (hereinafter referred to as the Package Regulations 2018) (SI 2018/634) entered into force to give effect to the Directive (EU) of the European Parliament and of the Council EU 2015/2302. This replaces the Package Travel, Package Holidays and Package Tours Regulations 1992.
The Package Regulations 2018 introduce several changes taking into account the transformation that the travel industry has gone through especially in the last decade. The main changes are:
- Redefining “package holiday” and extending the scope of the Regulations
Today, people do not usually purchase their holidays from travel shops but instead utilise internet (i.e. their mobile phones, laptop etc). It is also common to use an online travel agent where elements of holiday (i.e. flight, hotel) are bought separately although the consumer might get the impression that he/she is purchasing a package. Therefore, to offer extended protection for today’s consumers, a new definition of “package holiday” has been introduced. The new definition will capture thousands of more arrangements sold on a daily basis especially on the internet increasing consumer protection. For example, if elements of a holiday are offered or sold separately this will still be treated as a package holiday for the purposes of 2018 Regulation if a total price is charged to the consumer (Article 2, (5)(b)(ii)). Similarly, if a consumer purchases a product commonly known as “holiday gift box”, this will be treated as a package holiday even if the precise hotel, for example, or precise combination, is yet to be ascertained(Article 2, (5)(b)(iv)).
Also, consumers purchasing package holidays are increasingly interesting in renting cars for sightseeing purposes. Under 1992 Regulations, there was a package holiday if at least two travel services were included in the package- i.e. transport, accommodation and other tourist services. With 2018 Regulations, “car rental” is added to the list meaning that a contract that provides the consumer holiday accommodation and a rental car will be viewed as a package holiday within the scope of the Regulations.
2. Price Alterations
Article 10 indicates in which instances the price of the package holiday can be increased after the booking is made.
This is only possible if:
- The contract expressly stipulates that such an increase may be made;
- The prize increase is a direct consequence of changes in a) the price of the carriage of passengers resulting from the cost of fuel or other power sources; and b) the level of taxes or fees on the travel services included in the contract imposed by third parties not directly involved in the performance of the package.
The procedure as to how the price increase may be made is stipulated in the Regulation.
3. Cancellation of the Contract
Article 12(4) for the first time allows organisers to stipulate “reasonable standardised termination fees” when a booking is cancelled by the consumer. On the other hand, consumers have been afforded a new right to cancel without paying cancellation charges “… in the event of unavoidable and extraordinary circumstances occurring at the place of performance of the package, or which significantly affect the carriage of passengers to the destination.” (Article 12(7)). It is envisaged that this provision might prove problematic in practice especially if extraordinary events occur in the vicinity of the place of performance but there is no evidence that such events have caused disturbance at the location which the holiday maker was planning to go. For example, if a hurricane hits a nearby state (Alabama), would that justify the consumer to cancel a package holiday to Florida?
4. Liability of the Organiser
Under 1992 Regulations, the organiser is liable to compensate the consumers if something goes wrong during the holiday (i.e. problems arising during transportation or sub-standard accommodation is offered to the consumer) or if the consumer suffers illness or injury. This position is not altered under the 2018 Regulations but the liability of the organiser has been defined slightly differently. Under Article 15, the organiser is liable if there is “lack of conformity” with the package travel contract. It is submitted despite the use of new terminology, this will not create a significant change in the liability regime. This is because “lack of conformity” has been defined in Article 2(b) as “a failure to perform or improper performance of the travel services included in a package” which is precisely the wording used in 1992 Regulations.
From the perspective of transport law rules, 2018 Regulations offers the organisers the same protection that the previous Regulations provided.
Article 16(5) of 2018 Regulations provides that:
“In so far as the international conventions limit the extent of, or the conditions under which compensation is to be paid by a provider carrying out a travel service which is part of a package, the same limitations are to apply to the organiser.”
This means that if a passenger is injured whilst on board a ship involved in an international voyage, if the organiser is treated as a “contractual carrier” from the perspective of the relevant international regime, the Athens Convention on the Carriage of Passengers and their Luggage by Sea, the organiser will be able to rely on the limits afforded to carriers by that Convention. (It was stressed by HHJ Hallgarten QC in Lee v. Airtours Holidays Ltd & Another [2004] 1 Lloyd’s Rep 683, at [32] that a tour operator could be treated as “contracting carrier” under the Athens Convention as long as it assumes responsibility for the performance of the contract including the sea leg.) The position will be the same if the passenger is injured on a plane in an international voyage or on a train engaged in an international voyage.
5. Insolvency protection
The Regulation requires the organiser of a package holiday, who is established in the United Kingdom, to provide effective security in the event of organiser’s insolvency to cover the cost of refunding all payments made by or on behalf of travellers for any travel service not performed as a consequence of the insolvency (Article 19).
The Regulation 2018 also introduces a mutual recognition requirement. Accordingly, the UK must accept the insolvency protection arrangements entered into by organisers established in another EU Member State. Likewise, other Member States are required to accept the insolvency protection put in place by UK-based organisers.
One word of caution! Given that the Regulation is intended to implement an EU Directive, it is hard to predict what the position will be after BREXIT in March 2019 especially with regard to insolvency protection requirements. There is a serious risk that UK companies might be cut out of the European market unless they start a business in an EU county and offer insolvency protection as required by the Directive.