Keywords

Summary



Keywords

1 Approximation of laws - Package travel, package holidays and package tours - Directive 90/314 - Protection against the risk of insolvency or bankruptcy on the part of the travel operator - Implementation - Powers of the Member States - Limits

(Council Directive 90/314, Arts 7 and 8)

2 Freedom to provide services - Restrictions - Provision of financial security - Arrangement by a travel agency of security with a credit institution or insurance company established in another Member State - National rules requiring an agreement between the guarantor and a credit institution or insurance company situated in that Member State - Not permissible - Purported justification - Protection of consumers - Limits

(EC Treaty, Art. 59; Council Directives 89/646, 90/314, Art. 7, and 92/49)

Summary

1. Article 7 of Directive 90/314 on package travel, package holidays and package tours, which requires Member States to provide for security for the refund of money paid over, or for the repatriation of consumers, in the event of the insolvency or bankruptcy of the operator from whom they bought the travel, prescribes a result whereby package travellers enjoy rights guaranteeing their repatriation and the refund of money that they have paid over, the aim being that of consumer protection. It is also clear from Article 8 of that Directive that, like the other rules contained therein for the protection of consumers, the obligation to make provision for such security constitutes a minimum obligation. There is therefore nothing to prevent Member States from providing that the security in question must not only exist but must also be immediately available for payment if required for the repatriation of travellers, provided that this is done in conformity with the Treaty, and in particular with Article 59.

2 It is contrary to Article 59 of the Treaty, and to Directive 89/646 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780 and Directive 92/49 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357, for national rules to require, with a view to implementing Article 7 of Directive 90/314, that, where financial security is provided by a credit institution or insurance company situated in another Member State, the guarantor must conclude an agreement with a credit institution or insurance company situated in the national territory.

That requirement has the effect, first and foremost, of restricting and discouraging financial institutions established in other Member States, inasmuch as it prevents them from offering the security required directly to the travel organiser on the same basis as a guarantor situated in the national territory. It is also likely to discourage the travel operator from approaching a financial institution situated in another Member State, since the fact that such an institution must enter into a further guarantee agreement is liable to give rise to additional costs which would normally be passed on to the travel operator. It constitutes a restriction on the freedom to provide services which is not justified as being necessary for the protection of consumers.