INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW “5. This Regulation shall apply to any operating air carrier providing transport to passengers covered by paragraphs 1 and 2. Where an operating air carrier which has no contract with the passenger performs obligations under this Regulation, it shall be regarded as doing so on behalf of the person having a contract with that passenger. 6. This Regulation shall not affect the rights of passengers under Directive 90/314/EEC (Currently replaced by NPTD – A/N6). This Regulation shall not apply in cases where a package tour is cancelled for reasons other than cancellation of the flight.”. Per a contrario, Regulation 2004/261 also applies to tourists who have boarded or should have boarded a charter flight, and they are entitled to compensation and/or compensation from the air carrier in the event of flight delay or cancellation, with unless their tourist trip is canceled for reasons other than flight cancellation7. In the context of this conclusion, we also find the Commission Notice (2016/C 214/04) – “Interpretative Guidelines on Regulation (EC) No 261/2004 (…) and on Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council”. This Communication mentions that passengers/ tourists have rights in relation to both the package organiser under the NPTD and the operating air carrier (air carrier) under Regulation No. 261/2004. Therefore, seeing the first sentence of paragraph 6 of art.3 of Regulation no 261/2003, we understand that tourists who have contracted a package of travel services (within the meaning of NPTD), which also includes air transport with a charter flight contracted by the tour organiser, they can choose to act in two ways: – either based on the provisions of Regulation 261/2004, requesting compensation and/or indemnification from the air carrier; – either based on the provisions of Directive 2302/2015, requesting compensation from the tour organiser. 6 NPTD Article 29 – Repeal: ”Directive 90/314/EEC is repealed with effect from 1 July 2018. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex III.” 7 In addition, see recital 16 of Regulation 261/2004: “In cases where a package tour is cancelled for reasons other than the flight being cancelled, this Regulation should not apply.”
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