RETHINKING THE LIABILITY OF PACKAGE TOUR OPERATORS IN SPAIN II. THE ORGANISATION OF LIABILITY FOR THE PERFORMANCE OF THE PACKAGE IN THE EU DIRECTIVES In the European Union, two directives have dealt specifically with this issue. The first, Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (DVC), which sought to harmonise the regulation of this contract within the territory of the Union; and Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel, package holidays and package tours (DVC&SVV), which was adopted to remedy the failure of the previous Directive, which did not achieve the desired harmonisation, and to adapt the organisation of package travel to social reality, the development of the internet and the greater autonomy of travellers, who combine different travel services to organise their own travel or holidays3. One of the aims of the DVC was to harmonise the different laws of the Member States. Its aim was to defend a single market in tourism, which was becoming increasingly important, so that travellers would enjoy comparable conditions of protection, irrespective of the Member State in which the package was purchased. In reality, however, it was not very ambitious in its aim, since on the specific question of the liability of the operators involved in the organisation and marketing of the package (at that time, the organiser and the retailer), it only imposed on the Member States the obligation to take the necessary measures to make one of these operators liable for partial performance or breach of the contract (Art. 5 DVC), without specifying which of them should be liable to the consumer for such damage, or in the case of both, how they should do so, i.e. jointly or severally. The European legislator has therefore not achieved the desired harmonisation on this point4. 3 Major social changes, the development of the Internet and the greater autonomy of tourists, with less dependence on physical travel agencies, mean that the organisation of package travel is becoming outdated over time. This is evidenced by the adoption in 2013 of the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Adapting European package travel regulation for the digital age [COM (2013) 513 final], when it states “The travel market has also been transformed by the liberalisation of the air transport sector, which has made air tickets cheaper and more accessible”, [COM (2013) 513 final], p. 5. 4 The DVC was a minimum guideline. Vid. Explanatory Memorandum and Article 8. This means that, despite the effort to regulate package travel and the eventual harmonisation it achieved, it failed to achieve the intended harmonisation by allowing Member States to regulate the non-mandatory aspects of package travel or by allowing unfortunate choices such as the liability of the operators in the execution of the package. Some Member States took the text literally, others accepted the joint and several liability of the two operators, and some extended liability to third party service providers. Others, however, accepted the liability of the organiser and the retailer according to their respective scope of management of the contract. See Gómez Calle, 2011, p. 514, and Pérez Moriones, 2022, p. 194.
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