COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2015/2302 to make the protection of travellers more effective and to simplify and clarify certain aspects of the Directive
Date: 2023-11-29
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: carriage of passengers, consumer protection, contractual liability, financial solvency, package travel, payment, provision of services, termination of a contract, travel agency, traveller

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  EN 

   EUROPEAN COMMISSION  Brussels, 29.11.2023  SWD(2023) 905 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the document Proposal for a Directive of the European Parliament and of the Council amending Directive (EU) 2015/2302 to make the protection of travellers more effective and to simplify and clarify certain aspects of the Directive       {COM(2023) 905 final} - {SEC(2023) 540 final} - {SWD(2023) 906 final} - {SWD(2023) 907 final} - {SWD(2023) 908 final}  
 
 
Subsidiarity Grid 

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

The legal basis for EU action is Article 114 of the Treaty on the Functioning of the EU (‘TFEU’),1 which 
allows the European Parliament and the Council to adopt measures to establish and ensure the well-
functioning of the internal market. 

In addition, Article 169(1) and Article 169(2) (a) TFEU provide that the Union is to contribute to the 
attainment of a high level of consumer protection through measures adopted pursuant to Article 114 
TFEU.  

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In the case of consumer protection/internal market legal basis, the Union’s competence is shared.  

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article  3  TFEU2.  It  is  the  specific  legal  basis  which  determines  whether  the  proposal  falls  under  the 
subsidiarity  control  mechanism.  Article  4  TFEU3  sets  out  the  areas  where  competence  is  shared 
between the Union and the Member States. Article 6 TFEU4 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 25: 

-  Has there been a wide consultation before proposing the act? 
- 

Is  there  a  detailed  statement  with  qualitative  and,  where  possible,  quantitative  indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

As part of an evaluation of the Package Travel Directive (PTD) and an impact assessment for 
its  revision,  the  Commission  conducted  numerous  consultation  activities,  including  public 
and  targeted  stakeholder  consultations. The  consultations  were  carried  out  as  widely  as 
possible  to  receive  relevant  input,  evidence  and  explanations  of  the  needs  of  different 
categories  of  stakeholders,  (e.g.,  travellers/consumers,  tour  operators,  physical  and  online 
travel  agencies,  carriers,  national  authorities,  insolvency  protection  funds,  consumers  and 
business associations, academia and non-governmental organisations).  
During the consultation process, which started with the publication of a call for evidence in 
August 2021 and continued up to May 2023, the Commission applied a variety of methods 
and forms of consultation. They included: 
·  The  consultation  on  the  inception  impact  assessment  and  a  13-week  open  public 
consultation, which sought views from all interested parties.6 

1 EUR-Lex - 12016E114 - EN - EUR-Lex (europa.eu) 
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
3 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
4 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
5 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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·  Online  workshops,  including  meetings  of  the  Stakeholder  expert  group  to  support  the 
application  of  the  PTD.7  Dedicated  questionnaires  and  discussion  papers  were  sent  out  in 
advance to prepare for the meetings hosted by the Commission. 
· Online workshops organised by a consultant preparing a study for the Commission with the 
aim of updating participants (business associations and individual companies both including 
travel sector specific ones, consumer organisations as well as  European Consumer Centres) 
on  the  progress  of  the  study  and  gathering  information  and  other  input  in  an  interactive 
format. 
· Workshops organised by stakeholders (e.g., the European Guarantee Funds' Association for 
Travel and Tourism, the European Association of Travel Agents and Tour Operators) offered 
the  opportunity  to  further  gather  data  from  stakeholders  on  insolvency  protection  in  the 
travel sector and prepayments.   
·  Targeted  surveys  conducted  by  the  external  consultant,  aimed  to  collect  information  on 
stakeholders’ views  and experiences regarding the current  market  trends in package travel 
including cancellation rights, voucher use and reimbursements. It also sought to establish the 
main challenges of the current legislation as well as its primary costs and benefits. 
·  Targeted  consultations  of  different  stakeholders 
(public  authorities,  consumer 
organisations,  business  associations),  mostly  as  follow-up  of  various  workshops  and 
meetings. 
· Interviews conducted by the external consultant at two stages, comprising a set of scoping 
interviews and later full-scale stakeholder interviews.  
·  Meetings  at  technical  or political  level.  The  review of  the  PTD  was  raised  also  at  political 
level, in particular, at informal ministerial meetings during different Council Presidencies.  
·  Bilateral  online  and  in-person  meetings  with  a  wide  range  of  stakeholders,  including 
Member States.  
· Position papers from consumer associations, business associations and national authorities. 
· The Fit for Future Platform’s (F4F) opinion of 22 March 2022.8 In its opinion on the PTD, the 
F4F Platform identified five problems and made five related suggestions. References to and 
explanations on all recommendations from the ‘Fit for Future’ Platform opinion are included 
in different parts of the Impact Assessment, with a reference to all suggestions in Section 2 
and  in  relation  to  relevant  topics  or  measures  (e.g.,  Section  6  and  Annex  2).  Furthermore, 
while  four  out  of  five  F4F  recommendations  are  taken  up,  it  is  clarified  why  one 
recommendation is not taken up (Section 2.1.3.3. and Annex 2). 

The  explanatory  memorandum  of  the  proposal  and  the  impact  assessment  (chapter  3)  for 
the revision of the PTD contain a section on the principle of subsidiarity and refer to question 
2.2 below. 

2.2 Does  the  explanatory  memorandum  (and  any 

impact  assessment)  accompanying  the 
Commission’s  proposal  contain  an  adequate  justification  regarding  the  conformity  with  the 
principle of subsidiarity? 

Directive (EU) 2015/2302 is a full harmonisation instrument and  problems in its application 
can  be  solved  only  at  EU  level.  This  includes  areas  where  Member  States  took  different 

6 https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13117-Package-travel-review-of-
EU-rules_en  
7 https://ec.europa.eu/transparency/expert-groups-register/screen/expert-
groups/consult?lang=en&groupId=3617&fromMeetings=true&meetingId=45600  
8 https://commission.europa.eu/law/law-making-process/evaluating-and-improving-existing-laws/refit-making-
eu-law-simpler-less-costly-and-future-proof/fit-future-platform-f4f/adopted-
opinions_en#adoptedopinions2022  

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approaches  in  terms  of  legislation  or  interpretation.  Ensuring  that  all  EU  citizens  enjoy the 
rights provided by the Directive, including in a crisis, cannot be achieved by Member States 
acting alone. 

Moreover,  package  travel is  cross-border,  not  only  in  the  sense  of  travellers  going  abroad, 
but  also  in  terms of  packages  offered  to  travellers  by organisers  from other  countries.  The 
revision of the PTD aims to modernise the current rules and fix the problems flagged by the 
evaluation. The two overarching objectives of the PTD, namely, to ensure that all travellers in 
the  EU  enjoy  a  high  and  uniform  level  of  protection  and  to  contribute  to  the  proper 
functioning  of  the  internal  market,  remain  relevant.  Therefore,  by  acting  at  EU  level,  and 
removing  the  identified  problems,  closing  gaps,  as  well  as  clarifying  and  simplifying  the 
current Directive, the confidence of travellers and traders in purchasing and selling packages, 
including  across  borders,  will  improve  the  smooth  functioning  of  the  internal  market.  For 
instance,  laying  down  binding  rules  on  vouchers  and  common  rules  on  prepayments  will 
ensure more uniformity in the application of the Directive. If Member States addressed such 
issues  in  an  uncoordinated  manner,  this  would  increase  fragmentation  in  the  Internal 
Market. 

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

The objectives of the proposed action cannot be achieved sufficiently by the Member States 
acting alone.  
For  instance,  the  different  uncoordinated  measures that  many  Member  States  took  during 
the  COVID  crisis  confirm  the  necessity  for  EU  action.  For  example,  in  its  Recommendation 
2020/648 of May 2020 (’the 2020 Recommendation’),9 the Commission set out principles on 
voluntary  vouchers  and  on  ways  to  make  them  more  attractive  for  travellers,  including  by 
protecting them against the insolvency of the organiser. The uptake of the Recommendation 
varied  across  Member  States.  Several  Member  States  even  adopted  temporary  legislation 
deviating  from  Article  12(4)  of  the  Directive,  which  gives  travellers  the  right  to  a  refund 
within 14 days of the termination of the contract. The relevant Member States gave package 
organisers  the  possibility  to  significantly  extend  the  periods  for  reimbursements  or  made 
vouchers issued by organisers mandatory for travellers. In July 2020, the Commission opened 
infringement proceedings against 11 Member States.10  The infringement proceedings were 
closed after the relevant Member States repealed the legislation deviating from the PTD or 
after  the  relevant  measures  had  expired.  On  8  June  2023,  the  Court  of  Justice  of  the 
European Union (CJEU) confirmed in two rulings on the one remaining infringement case and 
in a preliminary ruling that such deviations infringed the PTD. 

(a)  Are  there  significant/appreciable  transnational/cross-border  aspects  to  the  problems  being 

tackled? Have these been quantified? 

9 Commission Recommendation 2020/648 of 13.5.2020 on vouchers offered to passengers and travellers as an 
alternative to reimbursement for cancelled package travel and transport services in the context of the COVID-
19 pandemic, C/2020/3125 (OJ L 151, 14.5.2020, p. 10). 
10 15 Member States adopted specific rules temporarily allowing organisers of packages to impose vouchers, 
instead of reimbursing payments in money, for cancelled trips, or to postpone reimbursement beyond the 14-
day period, which is contrary the PTD. The Commission opened infringement proceedings against 11 Member 
States.  
See Commission’s press communications of 2 July and 30 October 2020 (under point 5 – Justice): 
https://ec.europa.eu/commission/presscorner/detail/en/INF_20_1212  and 
https://ec.europa.eu/commission/presscorner/detail/en/inf_20_1687  

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The identified problems have a cross-border dimension in two ways: packages can be offered 
cross-border to travellers by organisers from other Member States and/or package travellers 
often go abroad. The revised PTD is expected to simplify the existing rules and improve legal 
certainty as well as to lead to a level field for businesses. This will lead to the protection of 
package travellers in a way that is as uniform as possible and will facilitate the development 
of cross-border trade and/or services within the EU in the field of package travel. This could 
not be achieved through action at national level.  

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty11 or significantly damage the interests of other Member States? 

Absence  of  a  common  EU  approach  would  result  in  legal  discrepancies  between  Member 
States. This fragmentation would generate additional compliance costs for businesses trading 
cross-border as well as different levels of consumer protection across the EU. 

(c)  To  what  extent  do  Member  States  have  the  ability  or  possibility  to  enact  appropriate 

measures? 

The  proposed  amendments  to  the  PTD  clarify,  inter  alia,  that  Member  States  may  set  up 
rapid  refund  mechanisms/crisis  funds  for  rapid  reimbursement  of  prepayments.  Member 
States have the competence to set up such mechanisms if they consider them appropriate.  

The proposal aims to strengthen the insolvency protection rules of the PTD. Member States 
will  continue  to  decide  themselves  on  the  best  way  to  implement  an  effective  insolvency 
protection system, while the proposal includes additional criteria on how effective insolvency 
protection  can  be  achieved.  Furthermore,  Member  States  have  the  possibility  to  set  up  a 
national insolvency back-up fund where appropriate. 

(d)  How does the problem and its causes (e.g., negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

Travellers from all Member States faced major difficulties in recovering prepayments within 
14 days for cancelled packages during the COVID-19 pandemic. This was due to the lack of 
liquidity  of  organisers  when  faced  with  many  concurrent  refund  requests.  Since  organisers 
use  the  prepayments  received  from  travellers  to  prepay  certain  services  included  in  a 
package, they depend on refunds from service  providers in order to reimburse travellers if 
the  package  is  cancelled.  As  experienced  during  the  pandemic,  many  organisers  did  not 
receive (timely) refunds from service providers (e.g., airlines and hotels) and so were unable 
to reimburse travellers within the mandatory period. 

In addition, there are differences in the insolvency protection systems in the Member States 
which, according to most consumer organisations and public authorities, triggered a higher 
level of protection against the insolvency of organisers in some Member States, while those 
differences imply insufficient protection of travellers in other Member States. 

Furthermore,  there  is  legal  uncertainty  and  there  are  different  interpretations  in  the 
Member States regarding certain provisions of the PTD, e.g., of the coverage of vouchers and 
refund  rights  against  the  insolvency  of  the  organiser,  concepts  of  ‘click-through’  packages 
and  of  linked  travel  arrangements,  termination  of  the  contract.  Also,  there  is  legal 
uncertainty about the use of vouchers and lack of clarity regarding travel warnings.  

11 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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(e)  Is the problem widespread across the EU or limited to a few Member States? 

The problems are widespread across the EU given the cross-border nature of package travel 
and given that the legal uncertainty and interpretation problems regarding the PTD affect all 
Member States. 

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No.  The  proposal  further  harmonises  and  clarifies  certain  provisions.  The  higher  degree  of 
legal  clarity  and  the  simplified  regulatory  framework  is  expected  to  increase  the  level  of 
compliance  and  would  make  enforcement  more  efficient  across  the  EU.  Moreover,  certain 
proposed  clarifications  may  reduce  the  need  for  interpretation  by  national  courts  and  the 
CJEU, ultimately reducing the burden on the national and EU public administrations. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

Overall,  Member  States  acknowledge  the  need  for  a  revision  of  the  PTD  through  targeted 
amendment that will clarify and further harmonise certain aspects. This includes the better 
protection of prepayments and more effective insolvency protection. 

2.4 Based  on  the  answer  to  the  questions  below,  can  the  objectives  of  the  proposed  action  be 
better achieved at Union level by reason of scale or effects of that action (EU added value)? 

The objectives of the proposed action can be better achieved at Union level by reason of 
scale and effects of that action.  

(a)  Are there clear benefits from EU level action?  

Directive (EU) 2015/2302 is a full harmonisation instrument  and problems in its application 
can be solved only at EU level. This includes certain areas where Member States have taken 
different  approaches  in  terms  of  legislation  or  interpretation.  Ensuring  that  all  EU  citizens 
enjoy  the  rights  provided  by  the  Directive,  including  in  a  crisis,  cannot  be  achieved  by 
Member States acting alone. 

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

The revision of the Directive would entail certain costs for stakeholders, but is also expected 
to  reduce  burden  on  them,  thanks  to  enhanced  legal  clarity  and  simplification.  Moreover, 
several  measures  considered  in  the  preferred  option  that  could  lead  to  moderate  cost 
increases are already implemented in some Member States, so that businesses present there 
would  not  face  additional costs.  As  regards  reduced burden  for  public  administrations, the 
higher degree of legal clarity and the simplified regulatory framework is expected to increase 
the level of compliance and would make enforcement procedures more efficient.  

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

See 2.3 (b) and (f) as well as 2.4 (b).  

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

5 

 
 
legislative 
The  revised  PTD  proposal  strengthens  and 
framework,  without  extending  its  scope.  Overall,  benefits  of  the  initiative  outweigh  any 
possible loss of competence of Member States and local and regional authorities. 

improves  an  already  existing 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes. See 2.3 (f) 

3.  Proportionality: How the EU should act 

3.1  Does  the  explanatory  memorandum  (and  any  impact  assessment)  accompanying  the 
Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal  and  a  statement  allowing  appraisal  of  the  compliance  of  the  proposal  with  the 
principle of proportionality? 

The proposed revision of the PTD complies with the proportionality principle of Article 5(3) 
TFEU. As explained in Section 3.3 of the Impact Assessment Report, it does not exceed what 
is necessary to achieve the objectives of the Treaties, as it is limited to aspects of travel law 
for which EU action is necessary. It does not extend the scope of the PTD.  
In addition, as described in Section 5.3 of the Impact Assessment Report, three policy options 
assessed  have  been  structured  in  light  of  the  anticipated  proportionality  of  the  included 
measures  with  regard  to  addressing  the  problems  defined  based  on  the  results  of  the 
evaluation.  

Finally, the proposed revision of the PTD is based on the preferred option under the Impact 
Assessment  Report,  which  contains  measures  that  are  less  interventionist  than  those 
contained  in  the  other  options  and  that  are  proportionate  both  with  a  view  to  crisis 
preparedness and outside of crisis situations (Section 6.1 of the Impact Assessment Report). 
Consequently, this initiative respects the balance between the objective and the means and 
methods  used  as  well  as  the  consequences  of  the  action,  and  is,  therefore,  proportionate 
(Section 7.4 of the Impact Assessment Report). 

3.2 Based  on  the  answers  to  the  questions  below  and  information  available  from  any  impact 
assessment,  the  explanatory  memorandum  or  other  sources,  is  the  proposed  action  an 
appropriate way to achieve the intended objectives? 

The  impact  assessment  that  accompanies  the  proposal  amending  the  PTD  analyses  the 
impacts of the  policy option through a quantitative and qualitative assessment  that proves 
that the  proposed amendments are proportionate  and do not exceed what  is necessary to 
strengthen the level of consumer protection,  at all  times,  including in the event  of a major 
crisis, while improving the functioning of the Internal Market in the package travel sector. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

Yes. Package travels can be cross-border and require the same legal provisions in all Member 
States  to  ensure  a  level  playing  field  for  business  and  the  same  level  of  protection  for 
consumers/travellers.  The  main  objective  is  to  enhance  the  effectiveness  of  the  existing, 
though targeted amendments, clarification and simplification.  

(b)  Is  the  form  of  Union  action  (choice  of  instrument)  justified,  as  simple  as  possible,  and 
coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued  (e.g.,  choice  between  regulation,  (framework)  directive,  recommendation,  or 

6 

 
 
 
alternative regulatory methods such as co-legislation, etc.)? 

The  objectives of this proposal can be  best pursued through a Directive,  which is the most 
appropriate instrument to amend an existing Directive.  

The  option  of  introducing  exclusively  non-legislative  measures,  such  as  a  Commission 
guidance  notice  or  a  recommendation,  instead  of  amending  the  PTD  was  discarded,  as  it 
corresponds  largely  to  the  baseline  and  cannot  resolve  the  problems  identified  in  the 
evaluation and the problem definition.  

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g., is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument or approach?) 

The proposed amendments leave as much scope for national decision as possible (see reply 
to question (e) below) while achieving satisfactorily the objectives set. 

(d)  Does  the 

initiative  create  financial  or  administrative  cost  for  the  Union,  national 
governments,  regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

A one-off direct adjustment cost of c. EUR 60.5k is envisaged for national governments due 
to the transposition process. The increase in administrative burden is c. EUR 48.7 million for 
traders (one-off cost) to comply with new information obligations and of c. EUR 6.5 million 
for familiarisation with the new provisions. Nevertheless, due to proposals for simplification, 
there  is  envisaged  a  decrease  in  administrative  burden  of  c.  EUR  181.4  million  per  year  as 
less forms have to be filled in by traders. For citizens/consumers, it is envisaged a recurrent 
cost  of  c.  EUR  332.1  million  due  to  100%  pass-through  of  cost  increases  for  organisers  to 
travellers through package price increases. At the same time, there is a decrease in costs for 
citizens/consumers  of  at  least  c.  EUR  168.8  million  per  year  due  to  reduction  of  consumer 
detriment  in  view  of  lower  prepayments.  Moreover,  certain  proposed  clarifications  may 
reduce the need for interpretation by national courts and the CJEU, ultimately reducing the 
burden on the national and EU public administrations. 

(e)  While  respecting  the  Union  law,  have  special  circumstances  applying  in  individual  Member 

States been taken into account? 

The proposal contains provisions allowing Member States to  set up the national insolvency 
protection systems based on common criteria, while leaving the specific implementation to 
them.  Furthermore,  it  allows  Member  States  to  decide  whether  to  set  up  at  national  level 
rapid  refund  mechanisms/funds  for  the  rapid  reimbursement  of  prepayments  or  back-up 
insolvency  protection  funds  for  better  protection  of  travellers’  prepayments  against  the 
insolvency of organisers.  

7