VI. COMPATIBILITY OF RESPONSABILITÉ DE PLEIN DROIT WITH THE NEW PACKAGE TRAVEL DIRECTIVE Christophe Lachièze6 argues that the concept of “responsabilité de plein droit” is fully compatible with the New Package Travel Directive supported in Article 2(3) wich states: ”This Directive does not affect national general contract law, such as the rules on the validity, formation, or effects of a contract.” According to Lachièze, the rules on civil liability are associated with “general national contract law,” which means that the French legislator can retain the “responsabilité de plein droit” established by the law of July 13, 1992. The interpretation of Lachièze is supported by the Report to the President of the Republic concerning Ordinance No. 2017-1717, dated December 20, 2017, which transposes Directive (EU) 2015/2302. “This Ordinance modifies the chapter related to the sale of packages in Title I of Book II of the Tourism Code. Article 4 of the Directive establishes the principle of maximum harmonisation. Consequently, the Ordinance reproduces the rules set forth in the Directive verbatim, except for areas that remain under the jurisdiction of the Member States, such as contract law. The Directive also allows for minimal harmonisation in certain aspects, permitting Member States to decide how to implement its provisions. As noted in recital 21 of the Directive, they may therefore “maintain or introduce national legislation corresponding to the provisions of this Directive, or certain of its provisions, in relation to contracts that fall outside the scope of this Directive.””7 6 Droit du Tourisme, Second edition, LexisNexis, 2020, p. 141. 7 There are other recitals not mentioned in the Report, but of interest in this matter, particularly the (20): They are Recitals not mentioned in the Report, but with interest in this subject, first of all, the (20): “This Directive should be without prejudice to national contract law for those aspects that are not regulated by it.”. Recital (22) states the objective of always having a responsible operator: “The main characteristic of a package is that there is one trader responsible as an organiser for the proper performance of the package as a whole. Only in cases where another trader is acting as the organiser of a package should a trader, typically a high street or online travel agent, be able to act as a mere retailer or intermediary and not be liable as an organiser. Whether a trader is acting as an organiser for a given package should depend on that trader’s involvement in the creation of the package, and not on how the trader describes his business. When considering whether a trader is an organiser or retailer, it should make no difference whether that trader is acting on the supply side or presents himself as an agent acting for the traveller.”. And finally, the recital (23) clarifies that the organiser is always responsible and the Member State can enshrine the responsibility of both: “Directive 90/314/EEC has given discretion to the Member States to determine whether retailers, organisers or both retailers and organisers are liable for the proper performance of a package. That flexibility has led to ambiguity in some Member States as to which trader is liable for the performance of the relevant travel services. Therefore, it should be clarified in this Directive that organisers are responsible for the performance of the travel services included in the 198 CARLOS TORRES
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