Modernisation of information requirements for consumers on online tourism services market by Tatjana Josipović

obligations of the provider of the online marketplace although he is not a contractual party in distant contracts entered into on online marketplaces. These rules now also apply to distance contracts entered into between consumers on the online marketplace although the CRD does not apply at all to such distance contracts because the person offering goods or services is not a trader. At the same time, the new Article 6a CRD does not provide for any specific substantive law aspect of legal relationships between the parties in a distance contract on the one hand, and the provider of the online marketplace on the other hand (in connection with the fulfilment of additional specific information duties of the provider). It is not laid down how the provider's omission to inform the consumer impacts a distance contract subsequently entered into, or the rights and obligations of the parties to a distance contract. Is the full and transparent provision of information considered to be a precondition for entering into a distance contract? Is a distance contract valid if, on the online interface, not all information prescribed in Article 6a CRD are given? What is the impact on the validity of a distance contract of the fact that the provider of the online marketplace has provided inaccurate and incomplete information to the consumer? There are also no provisions on possible civil liability of the provider of the online marketplace for the omissions in the provision of information. Do we then speak of the violation of a contractual obligation under a contract entered into between consumers and providers of online marketplaces, or of out-of-contract liability for the violation of the statutory obligation to provide information? Answers to these questions mostly depend on whether national legislators, when transposing the Omnibus Directive, have expressly provided for individual substantive law aspects of the violation of information duties of providers of online marketplaces, or whether general provisions of the applicable contract and tort law apply. The only thing now obviously arising from the CRD provisions is that for the violations of information duties laid down for the providers of online marketplaces, national authorities impose public law sanctions set forth in their national bodies of law.127 The regulation of private enforcement because of violation of the provisions on information duties of providers of online marketplaces is sometimes completely left to the Member States.128 In the context of distance contracts entered into on the tourism services market, another particularly important question arises: does the new Article 6a CRD on additional and specific information requirements for distance contracts concluded on online marketplaces apply to package travel contracts entered into on online marketplaces. Package travel contracts are regulated in the law of the Union by a separate Directive (Package Travel Directive). It is expressly provided in the Consumer Rights Directive that it does not apply to packages as defined in the Package Travel Directive.129 The reason why the CRD does not apply to package travel contracts is the existence of the Union's legislation on consumer protection in this particular type of contracts.130 It is expressly laid down in the CRD which articles mutatis mutandis apply to packages.131 However, this list is not amended by the Omnibus Directive with a new Article 6a incorporated in Chapter II CRD on consumer information and the right of withdrawal for distance and off-premises contracts. Therefore, it is justified to ask whether the new Article 6a CRD is excluded from application to package travel contracts. No doubt that the Package Travel Directive, in relation to the CRD, is considered as 'lex specialis' or 'lex posterior' when dealing with legal regulation of the protection of consumer rights in package travel contracts. The Package Travel Directive provides in detail for consumer rights in package travel contracts, including the rights of consumers that in the CRD are generally laid down for all distance contracts. Therefore, it is justified that the CRD does not apply to package travel contracts but rather a special directive by which the protection of consumer rights in these contracts is adjusted to the nature and content of the contract. However, there are no specific provisions in the Package Travel Directive on consumer protection regarding information requirements 127The obligations of the Member States to provide adequate and effective means in their national legislations to ensure compliance with the CRD applies also to the rules referred to in Art. 6a CRD on additional specific information requirements for contracts concluded on online marketplaces (Arts 23, 24 CRD). It means that Member States, in their legislations, must provide for the measures and penalties for the violation of obligations of the provider of the online marketplace regarding the provision of additional specific information pursuant to Art. 6a CRD. 128 The same problems are highlighted in literature regarding consumer remedies for the missing or misleading information provided by platforms in the context of unfair commercial practices. See Busch, Ch., Mak, V. (2021), pp. 112,113. 129 Art. 3/2 (g) CRD. 130 See recital 32 CRD. 131 Art. 6/7, Arts 8/2, 6, Arts 19, 21 and 22 CRD apply mutatis mutandis. See Art. 3/2 (g) CRD. See recital 48, Art. 27 Package Travel Directive.

RkJQdWJsaXNoZXIy MTE4NzM5Nw==