The EU Directive on Package Travel and Linked Travel Arrangements (Directive 2015/2302) was transposed into Irish law by the European Union (Package Travel and Linked Travel Arrangements) Regulations 2019 (S.I. 80/2019) (the Irish Package Travel Regulations)
Airlines, online travel agents, booking sites and travel service providers will need to study the Regulations carefully to determine if they are creating ‘click-through’ packages or facilitating linked travel arrangements within the meaning of the Irish Package Travel Regulations
This will apply in particular to travel service providers which offer travellers the option to ‘add-on’ additional travel services during the booking process
There are significant consequences for the ‘organisers’ and ‘retailers’ of ‘packages’ under the Irish Package Travel Regulations. In particular the Regulations allocate responsibility for the performance of a package to the ‘organiser’, irrespective of who the travel services are performed by. In addition ‘organisers’ of packages (and traders that ‘facilitate linked travel arrangements’) are required to obtain insolvency protection
The Commission for Aviation Regulation is the body tasked with administering the new insolvency protection regime in Ireland
The purpose of this briefing is to assist businesses in making an initial assessment on whether the Irish Package Travel Regulations may apply. Given the complexity of the rules, specific legal advice should be sought in all instances.
Key changes – ‘dynamic’ and ‘click-through’ packages
One of the objectives of the 2015 Directive was to adapt the current legislation on package travel to new online booking models. The Irish Package Travel Regulations incorporate the expanded definition of a ‘package’ in the 2015 Directive into the existing Irish legislation (i.e. the Package Holidays and Travel Trade Act 1995). In addition to traditional ‘single contract’ packages, the definition of a package now includes a broad range of booking scenarios whereby travellers self-select and purchase different combinations of travel service.
Travel services under the Regulations include the carriage of passengers, accommodation car rental and ‘other tourist services’. ‘Other tourist services’ is not defined under the Regulations however it likely covers a broad range of services such as guided tours, tickets to a concert or sporting event, spa services and/or sports equipment rental.
The revised definition of a ‘package’ is set out in our earlier briefing on the 2015 Directive (available here) and in our quick reference guide below:
Establishing your status under the Regulations
Where a ‘package’ is created, businesses will need to establish whether they are acting as the ‘organiser’ or ‘retailer’ of that package. The relevant definition of an organiser and retailer under the Irish Package Travel Regulations mirror the provisions of the 2015 Directive:
An ‘organiser’ is the trader who combines and sells or offers for sale packages, either directly or through another trader or together with another trader, or a trader who transmits the traveller’s data to another trader in accordance with part (v) of the definition of ‘package’
A retailer means a trader other than the organiser who sells or offers for sale packages combined by an organiser
An understanding of whether the Regulations are triggered is critical as there are significant obligations on the ‘organisers’ of packages under the Regulations including:
Automatic allocation of responsibility for the performance of the package to the organiser
A requirement to obtain insolvency protection for the refund of all payments made by or on behalf of travellers in the event of the organiser’s insolvency. The specific type of insolvency protection required is prescribed in the Irish Package Travel Regulations
Compliance with the various information and contract requirements
Retailers will also need to assess their relationships carefully, in particular where the relevant organisers are established outside of the EEA. In these circumstances, the retailer may be liable as the organiser unless the retailer can show that the organiser complies with the relevant rules.
Linked travel arrangements
The Irish Package Travel Regulations also incorporate the new concept of a ‘linked travel arrangement’ (LTA) into the existing Irish legislation.
An LTA occurs where:
a traveller selects and pays for two types of travel service on a single visit to a business’s point of sale or
where a business facilitates in a targeted manner the procurement of at least one additional travel service from another business where the second contract is concluded at latest 24 hours after the confirmation of the booking of the first travel service
The concept of ‘facilitates in a targeted manner’ is not defined under the Irish Package Travel Regulations however it appears from recitals to the 2015 Directive that this is intended to cover scenarios where there is a ‘commercial link’ involving remuneration between two traders. For example where a traveller books one travel service (e.g. a flight or a train journey) and receives an invitation to book an additional travel service at the chosen travel destination (e.g. hotel accommodation with a link to the booking site of that other service provider or intermediary there is likely to be a commercial link. Traders facilitating LTAs are also required to obtain insolvency protection in the manner prescribed under the Irish Package Travel Regulations.
There are several aspects of the Regulations and the 2015 Directive which remain open to interpretation. The European Commission is assessing the application of the EU Directive and
a first report on the application of the Directive to online bookings made at different points of sale was published on 21 June 2019 (available here).
In Ireland, the Commission for Aviation Regulation has recently (7 August 2019) published a consultation paper on existing insolvency protection arrangements for consumers buying package holidays. The outcome of this consultation may influence the form and amount of insolvency protection required by organiser and traders facilitating LTAs under the Irish Package Travel Regulations 2019. The consultation is available here.
Next steps and key contacts
Our Reference Guide below sets out an overview of the key questions to consider in determining whether the Irish Package Travel Regulations apply.
If you require advice on whether your business meets the definition of a package travel organiser, retailer or a trader facilitating LTAs or if you require advice on compliance with the Irish Package Travel Regulations please do not hesitate to contact any member of the EU, Competition and Procurement team.