ATV nimmt Stellung zur Überarbeitung der Pauschalreiserichtlinie durch die Europäische Kommission

The Action Alliance for Tourism Diversity ( ATV) is writing to express its views on the European Commission’s current revision of the Package Travel Directive.

The ATV consists of 27 associations representing all sectors of the diverse tourism industry. Our goal is to safeguard the tourism sector as a whole and ensure equitable support for all industry stakeholders, thereby preserving the integrity of our network for the future.

The European Commission is currently working on a revision of the Package Travel Directive (Directive (EU) 2015/2302). Against this backdrop, we would like to present our assessment of the current directive below. In doing so, we would like to highlight certain aspects where we advocate for adjustments as part of the European Commission’s review of the Package Travel Directive.

In the past, the implementation of the EU Package Travel Directive has already led to significant burdens and regulatory requirements for travel agencies and tour operators. In the current revision of the Package Travel Directive, particular care should therefore be taken not to further increase the bureaucratic burden on businesses through avoidable regulations. Instead, the focus should be on necessary adjustments and practical solutions in those areas of the law where experience shows that they have become particularly necessary.

1. Clarification of the right to cancel a trip in the event of extraordinary circumstances 

The existing provisions of the Package Travel Directive regarding the right to cancel a trip are not sufficiently clear and should be amended as part of the review. Particularly during the COVID-19 pandemic, numerous travelers have had to cancel their booked trips due to unavoidable, extraordinary circumstances pursuant to Article 12(2) of Directive (EU) 2015/2302 and Section 651h(3) of the German Civil Code (BGB). Case law has not yet provided a uniform and definitive clarification as to at what point during a prolonged pandemic “unavoidable, extraordinary circumstances” no longer exist, given that travelers are informed about the pandemic conditions and the associated risks. In most cases, courts are currently ruling in favor of consumers.

In the case of prolonged pandemics or other risks, however, the financial burden should not fall solely on tour operators. Refunds for canceled trips to a large number of customers can place an enormous financial strain on tour operators, which could threaten their very survival. This is particularly true since tour operators are obligated to refund customer payments within 14 days, even if the operator has not yet received reimbursement from the airline for the included transportation services, which has led to significant liquidity problems for tour operators, especially during the COVID-19 pandemic (see Chapters 2 & 3). Furthermore, tour operators are not responsible for the cancellation of the trip, while at the same time it can be assumed that, after a certain duration of the pandemic, customers are aware of pandemic-related restrictions and risks.

It is therefore necessary, as part of the revision of the Package Travel Directive, to define the point at which travelers can no longer invoke unavoidable and extraordinary circumstances. It should be considered an essential prerequisite for free cancellation of a trip due to unavoidable and extraordinary circumstances that these were not known to the consumer at the time of booking.

Such a knowledge-based criterion has long been applied with fair and equitable results in other areas. At the same time, clarity should be established regarding the implications of official travel advisories, particularly with respect to their legal effect in connection with trip cancellations due to unavoidable and extraordinary circumstances. It is important to determine which government travel advisories are relevant in this context and to what extent they should affect cancellation and refund rights. If government travel advisories serve as the basis for such rights, the criteria for these advisories should also be harmonized across the EU.

Apart from this, the global pandemic has also led to the collapse of the global travel market, with tourist travel severely restricted or suspended. As has become apparent, tour operators currently bear the risks associated with travel unilaterally in such cases, while the distribution of risk among the various stakeholders is uneven. This has led to financial difficulties, insolvencies, and problems with refunds to consumers. The provisions of the Package Travel Directive are not designed for such a global crisis and, as a result, have significantly exacerbated the liquidity situation of travel providers during the crisis. In our view, it is necessary, as part of the review of the Package Travel Directive, to make the distribution of risk fairer in the future and to find solutions for such exceptional situations of market failure. One possible measure could be the suspension of refund obligations during the crisis period and beyond, until the market has recovered.

2. Amendment of the Package Travel Directive and the Air Passenger Rights Regulation

Under the legal provisions of the Package Travel Directive, a tour operator is required to refund customer payments within 14 days, even if the operator has not yet received reimbursement from the airline for the included transportation service. During the COVID-19 pandemic, this situation has led to significant problems. To address this in the future, an amendment to the Air Passenger Rights Regulation (EC) No. 261/2004 is necessary, which also applies in the B2B sector. Tour operators should not be forced to reimburse customers before they have received reimbursement from the airline. Furthermore, in the event of the airline’s insolvency, the tour operator is currently fully liable to the customer without the payment to the airline being secured.

Furthermore, under the Air Passenger Rights Regulation, airlines are only required to provide a refund if the flight is canceled by the airline. This current inconsistency between the Package Travel Directive and the Air Passenger Rights Regulation regarding cancellation and refund rights in cases of “unavoidable and extraordinary circumstances” poses a significant obstacle to the protection of consumer rights and fair competition. A uniform regulation aligned with the refund provisions of the Package Travel Directive is therefore urgently needed to prevent unfair financial risks for package tour operators in connection with refunds.

Against this backdrop, we propose the following measures:

a) The International Air Transport Association (IATA) plays a key role as a clearinghouse in the travel industry. To ensure immediate refunds, airlines could be required to secure their customer funds with IATA as well, for example through an escrow agreement. In such a scenario, IATA would transfer the funds to the airline only after the trip is completed and, if necessary, issue refunds to consumers.

b) Airlines should be required, as part of a transparency obligation, to disclose information regarding the nature, number, and processing time of complaints. This would give consumers the opportunity to find out, before booking, how an airline handles issues should problems arise. A transparency requirement also makes it possible to identify irregularities in the provider market, on the basis of which government sanctions may be imposed if necessary.

c) There is a gap in liability between the Package Travel Directive and EU Regulation No. 261/2004 on air passenger rights, as the Package Travel Directive allows consumers to receive a refund in the event of a “voluntary cancellation” under “unavoidable and extraordinary circumstances,” whereas the Air Passenger Rights Regulation only obligates airlines to provide a refund in the event of cancellation by the airline. Accordingly, EU Regulation 261/2004 should be amended to close this liability gap, thereby enabling consumers and/or package tour operators to receive a full refund if the consumer has canceled due to “unavoidable and extraordinary circumstances.”

3. Adjustment of reimbursement deadlines for service providers

In order for package tour operators to be able to make timely refunds, they must themselves receive timely reimbursements from service providers such as airlines or hotels. This has not happened to a sufficient extent during the pandemic. To reduce the financial burden on tour operators, they should now, as part of the review of the Package Travel Directive, be entitled to receive reimbursements from service providers within a specified timeframe.

For package travel contracts that, due to unavoidable and extraordinary circumstances

If the contract is terminated, a refund period of 14 days from the date of termination applies. This period is consistent with other EU consumer protection regulations. In contrast, however, the refund periods for standalone tickets canceled by the transport service provider vary between seven days and one month, depending on the mode of transport. However, for the reasons outlined above, a uniform refund period of 14 days should also be introduced for all standalone tickets, regardless of the mode of transport.

It must also be clearly stipulated that service providers such as airlines, ferry companies, etc., are obligated to cancel and issue refunds if a trip cannot be carried out due to a travel warning, even if the actual transportation would be technically possible but, for example, entry into the country is not permitted.

4. Advance Payment Policy for Package Tours

As part of the current revision of the Package Travel Directive, the possibility of limiting advance payments by consumers is being explored in order to protect consumers’ funds and reduce the risk of delayed refunds. However, it is important to note that introducing such a restriction could place significant liquidity pressure on tour operators without addressing the actual source of the risk to consumers’ funds.

We therefore strongly oppose the elimination of advance payments for package tours. Given the wide variety of existing business models, it would be problematic to prohibit or restrict advance payments.

5. Regarding the category of linked travel arrangements – Section 651w of the German Civil Code (BGB)

Under the current disclosure requirements pursuant to Section 651w of the German Civil Code (BGB) for individual services, consumers are provided with all relevant information about the services offered and their most important rights. In some cases, however, these disclosure requirements prove ineffective, as consumers have generally already made their decision to book the individual services by the time they receive this information. For example, the note stating that this is not a package tour offers no added value in such scenarios. Instead, the introduction of the category of “mediation of linked travel arrangements” has ultimately led to increased costs, as both online and offline booking processes require a disproportionately high effort to provide the necessary information. The third category created by the legislature—which lies between the mere mediation of travel services and the organization of package tours—should therefore, in our view, be reviewed.

Notwithstanding the above, it is important to clarify, within the definition of “linked travel arrangements,” the concept of “a single visit or contact” in accordance with Article 3.5.a of the Package Travel Directive to ensure that situations are excluded in which a consumer merely scrolls through a website or uses tabs to make additional purchases. A uniform time frame should be established as part of the review of the Package Travel Directive to provide legal clarity on when a visit begins and ends. The concept of “targeted” facilitation of linked travel arrangements under Article 3.5.b is difficult for businesses and enforcement authorities to understand. This has led to differing interpretations of the provisions. It is therefore recommended that this requirement be reconsidered and, if necessary, deleted, as it does not provide effective consumer protection in its current form.

Furthermore, we are firmly opposed to expanding the scope of package travel. Such an expansion would place an unreasonable burden on travel companies and should therefore be avoided.

6. Improvements to the definition of intermediaries and package tours, as well as regulation in the B2B sector

Despite the goal of distinguishing between a travel agent and a tour operator in an objective manner, independent of customer perceptions, doubts and ambiguities regarding their definitions persist. Further clarification of the definitions is recommended to enable the creation of new and innovative business models, which, in our experience, are often not implemented because the risk of being classified as a tour operator is too high. If the guidelines for assessing a business model are fraught with uncertainties and ambiguities, this severely limits the implementation of innovations in the travel industry within the European Union.

We also believe that the provisions of the Package Travel Directive should not apply to the B2B sector. In its current form, however, the Package Travel Directive states that MICE bookings (Meetings, Incentives, Conferences, Exhibitions) also fall under the regulations if a company is a direct customer of an agency, unless there are “framework agreements” between the company and the agency. In our view, this provision is not clearly defined; for example, it remains unclear how “framework agreements” are to be interpreted. Furthermore, freedom of contract should continue to be preserved in B2B business: Consequently, package travel law should apply only to consumers and not to companies, even if a company is a “consumer of the trip.”

The statement is available for download here in PDF format.