The New Passenger Mobility Package – Highlights and Low Points Michael Wukoschitz1 Introduction. – I. Revision of the Package Travel Directive. 1.1. Definitions. 1.2. Payments. 1.3. Termination of the package contract due to ‘extraordinary circumstances’. 1.4. Vouchers. 1.5. Insolvency protection. 1.6. Redress of the organiser. 1.7. Conclusions. – II. Passenger Rights Regulations. 2.1. Air ticket bookings through an intermediary. 2.2. Disabled passengers and passengers with reduced mobility. 2.3. General amendments for all passenger rights regulations. – III. New Regulation on passenger rights in the context of multimodal journeys. 3.1. Single Multimodal Contract. 3.2. Combined Multimodal Ticket. 3.3. General Provisions. 3.4. Conclusions. – IV. Overall Assessment In November 2023, the EU Commission came up with a so called “Passenger Mobility Package” which consists of four parts: a revision of the Package Travel Directive, amendments to the Passenger Rights Regulations concerning passengers travelling by aircraft, ship, bus or train, a proposal for a new Regulation on Multimodal Journeys and a Revision of the Delegated Regulation on EU-wide multimodal travel information service (MMTIS). The article focusses on the first three parts of the Passenger Mobility Package, presents the main changes and subjects them to a critical review. For reasons of clarity, not all details are covered, but selected key points are discussed, advantages and weak points shown and conclusions drawn. Keywords: Passenger mobility package, legislation, package travel, linked travel arrangements, directive, passenger rights, regulation, traveller, passenger, organiser, carrier, intermediary, multimodal journey, definition, payment, downpayment, voucher, insolvency, insolvency protection, redress, termination, extraordinary circumstances, reimbursement, refund, CJEU, interpreation, 1 President Emeritus of the International Forum of Travel and Tourism Advocates.
information, travel warnings, disabled persons, persons with reduced mobiliy, non-discrimination, tickets, service quality standards, compliance, national enforcement bodies, disruption, delay, cancellation, enforcement, simplification, clarification, sustainability, liability. INTRODUCTION The so called “Passenger Mobility Package” introduced by the EU Commission in November 2023, basically comprises of four parts: a revision of the Package Travel Directive 2015,2 a number of amendments to the ‘Passenger Rights Regulations’,3 a proposal for a new Regulation on Multimodal Journeys and a revision of the Multimodal Travel Information Service (MMTIS). The article gives an overview of the Commisson’s respective proposals and takes a closer look at those aspects that the author considers to be particularly well-done or particularly problematic. I. REVISION OF THE PACKAGE TRAVEL DIRECTIVE4 With regard to the Package Travel Directive, the proposal aims for an even more effective protection of package travellers, in particular, during crisis situations, learning the lessons from the Covid19 pandemic and the Thomas Cook insolvency.5 The title of the proposal also indicates a simplification and clarification of certain aspects of the Package Travel Directive 2015, some 2 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC (“PTD 2015”). 3 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91; Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air; Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004; Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 ; Regulation (EU) 2021/782 of the European Parliament and of the Council of 29 April 2021 on rail passengers’ rights and obligations. 4 Proposal for a Directive of the European Parliament and 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 (further referred to as CP 2023 PTD). 5 https://transport.ec.europa.eu/news-events/news/passenger-mobility-package-2023-11-29_en. 2 MICHAEL WUKOSCHITZ
concepts of which were found to be far too complicated and confusing in practice. While the current Directive only applies to the relation between traders selling packages or facilitating linked travel arrangements and travellers,6 the proposal suggests extending the scope of application to refund rights of organisers against travel service providers in case of cancellation or non-provision of a service that is part of a travel package. Accordingly, the subject matter of the Directive is suggested to include ’certain aspects of contracts between organisers of packages and service providers’. This is linked to the organiser’s right of redress under Article 22 PTD 2015 which has sparked debate as to whether it provides an independent legal basis for redress or merely refers to redress rights under existing national law. The issue is discussed in more detail further below. 1.1. Definitions An important issue is definitions, in particular the definition of the term ‘package’. In this regard, the PTD 2015 had brought a significant change by including combinations of services subject to separate contracts,7 where these separate contracts are concluded in particular situtations. The complexity of that defintition has caused confusion and ambiguity in practice. One of the situations in which separate contracts constitute a package is the purchase at a single point of sale if the respective services are selected before the traveller agrees to pay. The phrase ‘agrees to pay’ probably is to be understood as the moment when the traveller enters into a binding commitment. The Commisson proposal suggests to extend the definition to travel services • booked within 3 hours after the traveller agreed to pay for the first travel service, or, (even) • booked within 24 hours after the traveller agreed to pay for the first travel service, if, before the traveller agreed to pay for the first travel service, the trader invited the traveller to subsequently book one or more additional types of travel services. This would require the traders to keep records on the exact time at which the traveller agreed to pay. Apart from that rather bureaucratical aspect, it could even be difficult to exactly determine the exact time in the course of booking negotiations. It is also rather unclear what ‘invite’ exactly means: while in the 6 Article 2(1) PTD 2015. 7 Article 3 No 2 point (b) PTD 2015. 3 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
English version it sounds like a mere suggestion, in the German version it feels more like a certain amount of pressure. With regard to the so called ‘click-through’ bookings, the PTD 2025 requires transmission of three particular data of the traveller8 from the first trader to the other(s) for the services to constitute a package. It was clear from the very beginning that this makes it quite easy to circumvent a package by simply not transmitting (all three) data. In practice, ‘click-throuh’ bookings almost never constiute a package because traders avoid the transmission of the three relevant pieces of data.9 According to the Commission proposal, transmission of any kind of data should be sufficient. However, this is not a major change as a package can still be avoided by not transmitting any data. One of the main purposes of the PTD 2015, the inclusion of ‘click-trough’ bookings, will therefore most probably continue to be missed in practice. The PTD 2015 also brought the new concept of ‘linked travel arrangements’.10 This concept was heavily criticized for being far too complex and confusing with only very few benefits for travellers,11 which are more or less limited to the information that the traveller will not benefit from any of the rights applying exclusively to packages but will be insolvency protected for the payments collected by the so called ‘facilitating trader‘ insofar as a travel service which is part of a linked travel arrangement is not performed as a consequence of their insolvency.12 It was therefore hoped that the legislator would abolish this concept when revising the PTD. Nevertheless, the Commission Proposal maintains the concept with a new definition which the Commission regards as ‘simplified and clarified‘. According to the Proposal, ‘linked travel arrangement’ shall mean a combination of different types of travel services, not falling under the definition of a package, where, a trader which is party to a contract on the provision of a travel service and receives payments by or on behalf of a traveller invites a traveller to book additional type of travel service from another trader for the purpose of same trip or holiday and where a contract on the provision of an additional travel service is concluded at the latest 24 hours after the confirmation of the booking of the first contract.13 8 Article 3 No 2 point (b) (v) PTD 2015: name, payment details and e-mail address. 9 Comission Report of 21 June 2019 COM(2019) 270 final. 10 Article 3 No 5 PTD 2015. 11 Grant/Mason/Bunce Holiday Law6, 12-030; Tonner MüKo BGB § 651w (2). 12 Article 19(2) PTD 2015. 13 Article 1(3) point (b) CP 2023 PTD. 4 MICHAEL WUKOSCHITZ
This new definition is similar to the second part of the current definition in the PTD 2015. However, while the PTD also covers the facilitation of the purchase of travel services by any trader, including traders who do not themselves provide travel services - i.e. platforms such as Expedia - it should be required, according to the Commission, that the purchase of another service is facilitated by a trader which is party to a contract on the provision of a travel service. The phrase ‘facilitates procurement in a targeted manner‘ is replaced by ‘invites‘ which doesn’t seem a lot clearer. It should be reconsidered whether the concept of ‘linked travel arrangements’ is really worth maintaining. 1.2. Payments The Commission proposes that the organiser (or, where applicable, the retailer) shall not request downpayments exceeding 25% of the total price of the package and shall not request the remaining payment earlier than 28 days before the start of the package.14 This rule, however, shall not apply to package travel contracts concluded with individual travel service providers where the services are combined after the conclusion of a contract by which a trader entitles the traveller to choose among a selection of different types of travel services.15 This exception ist justified in the recitals by reasoning that a limitation of advance payments was not compatible with the concept of package travel gift boxes.16 Another exception refers to packages booked less than 28 days before the start of the package. This exemption seems unneccessary: if the contract is only concluded only less than 28 days before the start of the package, how could it then entitle an organiser or retailer to request full payment earlier than 28 days before the start of the package? Furthermore, higher downpayments may be requested where this is necessary to ensure the organisation and the performance of the package. In so far, the level of downpayments requested by organisers may be justified by advance payments to service providers.17 The proposal was partly critisized because of allowing considerable higher downpayments if necessary to ensure the organisation and the performance of 14 Article 5a CP 2023 PTD. 15 Packages as defined in Article 3, point (2)(b)(iv) CP 2023 PTD. 16 Recital 14 CP 2023 PTD. 17 Recital 13 CP 2023 PTD. 5 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
the package18 partly because of the general limtiation of downpayments itself. In my view, the issue is strongly related to insolvency protection: as long as payments are covered by insolvency protection, there is no urgent need for a limitation. In Austrian law, insolvency protection rules only allow up to 20% of the package as a downpayment, and the remaining payment earlier than 20 days before the start of the package.19 1.3. Termination of the package contract due to ‘extraordinary circumstances’ According to 12 PTD 2015, both, the traveller and the organiser, may terminate the package travel contract due to so called ‘unavoidable and extraordinary circumstances’. However, the requirements are slightly different: while the traveller’s right to terminate the contract requires unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination,20 organiser may terminate the package travel contract if it is prevented from performing the contract because of unavoidable and extraordinary circumstances and notifies the traveller of the termination of the contract without undue delay before the start of the package.21 Contract termination due to exceptional circumstances has already been the subject of a number of cases before the CJEU: In C-299/22 – Tez Tour,22 the CJEU held that • the finding that ‘unavoidable and extraordinary circumstances’ have arisen at or in the immediate vicinity of the destination of a journey cannot be subject to the condition that the competent authorities have published an official recommendation advising travellers against travelling to the area concerned or an official decision classifying that area as a ‘risk area’; • the concept of ‘unavoidable and extraordinary circumstances … significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination’ of the trip in question, covers not only circumstances which make it impossible to perform that package but also circumstances which, without preventing such 18 Führich, Vorschlag der Kommission zur Ändrung der Reise-RL – Anzahlungen (Art. 5a), RRa 2024, 165 19 Sec. 4(4) PRV. 20 Article 12(2) PTD 2015. 21 Article 12(3) PTD 2015. 22 CJEU judgment of 29 Feb. 2024 in case C-299/22 – Tez Tour. 6 MICHAEL WUKOSCHITZ
performance, mean that the package cannot be performed without exposing the travellers concerned to risks to their health and safety, taking into account, where appropriate, personal factors relating to the individual situation of those travellers; • a situation which, on the date of conclusion of the package travel contract, was already known to the traveller concerned or was foreseeable for him or her, cannot be relied on by that traveller as ‘unavoidable and extraordinary circumstances’ unless that situation has undergone significant changes after the conclusion of the contract, which themselves are capable of meeting the definition of the concept of ‘unavoidable and extraordinary circumstances’; • in determining whether unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity ‘significantly [affect] the performance of the package, or … significantly affect the carriage of passengers to the destination’, effects occurring at the place of departure and at the various places connected with the start and return of the trip in question may also be taken into account where they affect the performance of that package. In judgment C-584/22 – Kiwi Tours,23 the CJEU added that • to determine whether ‘unavoidable and extraordinary circumstances’ which have consequences ‘significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination’, account must be taken only of the situation prevailing on the date on which that traveller terminated his or her travel contract, meaning that all subsequent developments are irrelevant for the assessment the right of termination. Case C-546/22 – Schauinsland Reisen24 dealt with the organiser’s right of termination and clarfied that • in order establish that it is prevented from performing a package travel contract due to unavoidable and extraordinary circumstances, the organiser can rely on the publication, by the competent authorities, of an official recommendation advising travellers against travelling to the area concerned, even though the traveller declared that he or she 23 CJEU judgment of 29 Feb. 2024 in case C-584/22 – Kiwi Tours. 24 CJEU judgment of 4 Oct. 2024 in case C-546/22 – Schauinsland-Reisen. 7 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
still wished to proceed with the trip and that it would not have been objectively impossible for the organiser to perform that travel contract. However, such a recommendation cannot constitute compelling evidence in that regard. The Commission Proposal partly tries to implement this case law into the text of the Directive by referring to ‘reasonable expectations’ of the traveller25 and to official warnings against travel to a particular destination as ‘important elements to be taken into account’.26 Furthermore, the Commission suggests including circumstances ocurring at the place of the traveller’s residence. In my view, it does not appear to make much sense and does not necessarily add any legal value to ’implement’ interpretations of a provision by the CJEU by amending the wording - at least where the CJEU’s interpretation is already fully covered by the previous wording. In particular, the suggested provision stating that ‘official warnings … shall be important elements to be taken into account …’ lacks any legislative quality. It should be the task of the courts to consider the circumstances in each case. Regarding the refund to be made in case of a termination of contract, the Commission Proposal not only maintains the 14-day deadline which proved difficult (or almost impossible) to comply with during the Covid-pandemic but also intends to aplly this deadline, regardless of whether the traveller specifically asks for a refund.27 Another shortcoming of the proposal is the still inadequate definition of the term ‘unavoidble and extraordinary circumstances’ which only refers to sitiuations beyond the control of the party invoking that sitiuoin and the unavoidability of the consequences thereof even if all reasonable measures had been taken28 - but does not include any element referring to the requirement of the situation to be extraordinary.29 1.4. Vouchers During the Covid-pandemic, due to the high numbers of packages cancelled by either the travellers or the organisers, many orgnaisers had difficulties to reimburse the travellers within the short period of 14 days. The money paid 25 Article 12(2) CP 2023 PTD. 26 Article 12(3a) CP 2023 PTD. 27 Article 12(4) CP 2023 PTD. 28 Article 3 No. 13 PTD 2015. 29 See in detail Wukoschitz, „Extraordinary“ Legislative Shortcomings in the New PTD, in Franceschelli/Morandi/ Torres, The New Package Travel Directive [2017]. 8 MICHAEL WUKOSCHITZ
by the travellers had mostly already been forwarded to the suppliers and could not be recovered in the short term. Package organisers therefore tried to offer vouchers instead of a cash refund and some member states like France, Italy, Slovakia and the Czech Republic even introduced legislation which made it mandatory for travellers to accept these vouchers. However, in its judgment C-407/21,30 the CJEU clarified that Article 12 para 2 and 3 of the PTD 2015 must be interpreted as meaning that where, following the termination of a package travel contract, the organiser of that package is required, under that provision, to provide the traveller concerned with a full refund of any payments made for the package, such a refund refers solely to the reimbursement of those payments in the form of a sum of money. Article 12 therefore precludes national legislation under which package travel organisers are temporarily released, in the context of the outbreak of a global health crisis preventing the performance of package travel contracts, from their obligation to provide the travellers concerned, not later than 14 days after a contract is terminated, with a full refund of any payments made under the terminated contract. The intention of such legislation to prevent the solvency of those travel organisers from being affected by the expected high number of claims for reimbursement to such an extent that their existence is jeopardised, and thus to preserve the viability of the sector concerned, was not accepted by the Court as a justification for a derogation from the Directive. The Commission Proposal includes a detailed regulation of vouchers in a suggested new Article 12a. According to this provision, the choice may be given to the traveller to accept a voucher of a value corresponding at least to the amount of the traveller’s refund right which can be used for a future package instead of a refund.31 Such an offer must be accompanied by information, in particular on the voluntariness of the acceptance of a voucher, the validity period and the rights of travellers in relation to vouchers.32 Travellers shall lose their right to a refund during the validity period of the voucher only if they accept the voucher instead of a refund explicitly and in writing.33 The vouchers which shall be transferable to another traveller without any additional cost,34 shall have a maximum validity period of 12 months from acceptance, which can be extended by a further 12 months by express written 30 CJEU judgment of 8 Jun. 2023 in case C-407/21 – UFC - Que choisir and CLCV. 31 Article 12a(1) and (3) CP 2023 PTD. 32 Article 12a(2) CP 2023 PTD. 33 Article 12a(4) CP 2023 PTD. 34 Article 12a(8) CP 2023 PTD. 9 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
agreement.35 If the voucher is not redeemed within its validity period, the organiser shall refund the amount specified in the voucher at the latest within 14 days after the end of the validity period without the need of any prior request by the traveller.36 Last but not least, there shall be insolvency protection coverage for the vouchers – but limited to the amount of the payments received from the traveller.37 While it makes perfect sense to provide for a mandatory insolvency protection coverage for such vouchers, the provision is far too detailed in its other respects. Sentences like “The organiser may offer a voucher on a higher amount” or “The parties may at any time agree on a full refund before a voucher is redeemed or expires” are unnecessary and redundant. Moreover, I don’t see a need to limit the validity of the vouchers: as long as there is insolvency protection coverage, both parties might be interested in a longer validity period. Transferability could be left to the agreement of the parties within the framework of contractual freedom. All in all, I consider the proposal to be over-regulation; more flexibility could certainly be allowed (in the interests of both parties), especially as it is always necessary for the traveller to opt for a voucher voluntarily anyway.38 1.5. Insolvency protection The explanatory memorandum the Commission Proposal explicitly refers to the challenges which emerged from the 2019 Thomas Cook bankruptcy and the COVID-19 pandemic and to an opinion of the Fit for Future Platform (F4F) of 22 March 2022,39 which had identified five problems in the PTD 2015, one of which related to uncertainties regarding insolvency protection. According to Recital 11 of the proposed amended PTD, it should be provided that travellers’ payments are effectively protected at all times, including in a crisis. Furthermore, it should be ensured that the national insolvency protection systems are resilient and provide more uniform protection. Again, the proposal suggests far more detailed rules than those of the current PTD. 35 Article 12a(5) CP 2023 PTD. 36 Article 12a(7) CP 2023 PTD (the proposal does not include a para 6). 37 Article 12a(9) CP 2023 PTD. 38 Less critical: Stamer, Vorschlag der Kommission zur Änderung der Reise-RL – Gutscheine (Art. 12a), RRa 2024, 176. 39 https://commission.europa.eu/document/download/fa58abe9-99c9-4ccd-8f18-3e1a0c66bb14_ en?filename=Final%20opinion%202021_SBGR3_15%20Package%20travel_fup_0.pdf. 10 MICHAEL WUKOSCHITZ
As already mentioned above, the Covid-Crisis of 2020-2022 resulted into the cancellation of a large number of holiday packages which could not be performed due to reasons related to the pandemic, like curfews, flight bans, operating bans etc. As a consequence, some organisers ran into liquidity problems, some of which resulted in insolvency. In these cases, the insolvency was a consequence of the non-performance of the respective packages - and not the non-performance “a consequence of the organiser’s insolvency.” as suggested by the wording of Article 17 PTD 2015. In joined cases C-771/22 and C-45/22,40 the CJEU held that Article 17(1) PTD 2015 had to be interpreted as meaning that the security conferred on travellers against the insolvency of the package travel organiser applies where a traveller terminates his or her package travel contract because of unavoidable and extraordinary circumstances pursuant to Article 12(2) and, after that termination, that travel organiser becomes insolvent, but that traveller has not yet received a full refund of any payments made to which he is entitled under the latter provision. In the second paragraph of Article 17, the Commission proposes to add that the security shall be sufficient to cover costs for refunds and, where applicable, repatriations and vouchers, ‘at all times’ and that the coverage shall take into account periods where organisers hold the highest amounts of payments and any changes in the volume of sales of packages. Once again, it’s not entirely clear what the specific effects of this addition are supposed to be. A proposed new paragraph 3 shall oblige the Member States to supervise the insolvency protection arrangements of organisers established on their territory, monitor the market for the provision of insolvency protection, and may, if necessary, require a second level of protection. Given the general obligation to effectively implement Union law,41 it is questionable whether this amendment brings any additional benefit. In my opinion, the last sentence, which refers to co-financing by the Member States, is more of a competition and state aid law provision than a travel law provision and therefore seems rather out of place in the PTD. The Commission also proposes establishing a deadline of three months for providing a refund of payments to the traveller.42 In large insolvency cases, 40 CJEU judgment of 29 Jul. 2024 in joined cases C771/22 – HDI Global and C45/23 - MS Amlin Insurance. 41 The effectiveness of the implementation is the legal consequence of proper implementation. An implementation that is not effective is therefore also not proper. 42 Article 17(6) CP 2023 PTD 11 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
however, this period may not be sufficient to examine all registered claims. A fixed deadline therefore seems questionable, and it would be better to stick to the current approach of a refund “without undue delay”.43 The member states shall be allowes to require retailers to take out insolvency protection in addition to organisers where this is justified in light of payments received by retailers. However, if payments received by the retailer are attributed to the organiser anyway,44 the risk of insolvency of the retailer lies solely with the organiser and there is no need to protect travellers in this respect. On the other hand, the Commission’s plan to also look into the protection of passengers in the event of insolvency of air carriers and major crisis in the context of Regulation (EC) No 1008/2008 (Air Services Regulation) doesn’t seem to have made any progress and is not part of the Commission Proposal.45 1.6. Redress of the organiser Article 22 PTD 2015 states Member States shall ensure that the organiser (or retailer) has the right to seek redress from any third parties which contributed to an event triggering compensation, price reduction or other obligations of the organiser (or retailer) under the Directive. It is unclear whether this Article provides for a separate legal basis for redress claims or just refers to redress rights under general contract law of the Member States. The Commission Proposal suggests adding a second paragraph according to which Member States shall also ensure that service providers who cancel or fail to provide a service that is part of a package reimburse the organiser within 7 days all payments made by the organiser for the service. This 7-day period shall start on the day following the cancellation of the service or the day when the service was due to be performed, whichever is the earlier date.46 This deadline is related to the organiser’s obligation to reimburse the traveller within 14 days in case of a termination of the contract.47 However, this obligation of the organiser goes far beyond the amount paid for a particular service. Firstly, the problem remains that Article 22 is not mandatory and service providers, especially if they are the stronger party to the contract, can easily 43 Article 17(5) PTD 2015. 44 See Austrian Supreme Court (OGH) judgment of 28.10.1997, 4Ob276/97k. 45 Critical of this too: Tonner, Vorschlag der Kommission zur Ändrung der Reise-RL – Insolvenzabsicherung (Art. 17), RRa 2024, 179; Wukoschitz, Insolvency protection for package holidays – development, CJEU case law and the new Commission Proposal, ERA Forum 04/2025, 149. 46 Article 22(2) CP 2023 PTD. 47 Article 12(4) PTD 2015. 12 MICHAEL WUKOSCHITZ
exclude such a remedy in their contractual terms.48 Secondly, the law of the respective third country will often have to be applied to service providers in third countries, and the EU has no competence to impose such regulations on these countries. Thirdly, the seven-day period seems unrealistic.49 If it is not adhered to voluntarily, there is no possibility for the organiser to enforce a refund within this short period. Finally, it is not entirely clear why the second paragraph is limited to the reimbursement of what has been paid and does not (like the first paragraph) also include other rights of recourse. 1.7. Conclusions While the Commission Proposal undeniably contains some positive ideas it cannot be regarded a great achievement. Extensive and cumbersome wording undermines the objectives of clarification and simplification. Where inadequacies have been recognised - particularly in the inclusion of new technologies - there is a lack of courage to fundamentally rethink previous concepts, even though they have not proven themselves in practice. This applies in particular to ‘click through bookings’ and ‘linked travel arrangements’. Cosmetic adjustments do not eliminate the problems and in some cases lead to even more complex definitions and difficulties in interpretation. With regard to insolvency insurance, the proposals are also limited to a higher level of regulation without addressing fundamental problems such as the insolvency protection of airline tickets.50 Although the proposed rules on redress are positive in principle, they seem impractical in detail. It is therefore not surprising that the EU Council in their statement51 suggested significant amendments to the Commission Proposal like (at least as an option) the abolition of the category of linked travel arrangements, deletion of the proposed rule on payments, and the inclusion of the organiser’s right to refund in the mandatory provisions. The EU Parliament seems to be tending in the opposite direction again, which is why the outcome of the trialogue52 remains to be seen. 48 See Grant in Torres ea (Editors), Collective Commentary about the New Package Travel Directive [2020], Article 22 Right of Redress (474). 49 So also Bergmann, Vorschlag der Kommission zur Ändrung der Reise-RL – Regress (Art. 22 Abs. 2), RRa 2024, 183. 50 See the recent insolvency of Air Belgium where passengers are unlikely to get refunds: https://www. brusselstimes.com/1558049/passengers-unlikely-to-get-refunds-for-air-belgium-flights. 51 Presidency text proposal 2023/0435(COD). 52 Article 294 TFEU. 13 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
II. PASSENGER RIGHTS REGULATIONS The second part of the Passenger Mobility Package comprises a proposal for the amdendment of regulations concerning the rights of passengers53 when travelling by air,54 sea and inland waterway,55 bus and coach56 or train.57 It is supposed to help to incentivise the use of collective modes of transport and consequently also to implement the Green Deal and intends to address the following issues • shortcomings in the implementation and enforcement of passenger rights, which prevent passengers of all modes of transport from fully exercising their rights, and • the reimbursement of the cost of a flight ticket if the flight does not take place as planned,58 provided the booking was made through an intermediary. 2.1. Air ticket bookings through an intermediary The proposal suggests inserting a new Article 8a in the Air Passenger Rights Regulation according to which, where the passenger has bought a ticket through an intermediary, the operating air carrier may make the reimbursement through that intermediary. It is confusing though that according to the proposed definition,59 ‘intermediary’ shall mean ‘any ticket vendor, organiser or retailer as defined in 53 Proposal for a Regulation of the European Parliament and of the Council amending Regulations (EC) No 261/2004, (EC) No 1107/2006, (EU) No 1177/2010, (EU) No 181/2011 and (EU) 2021/782 as regards enforcement of passenger rights in the Union (COM/2023/753 final), further referred to as “CP 2023 PR”. 54 Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (“Air Passenger Rights Regulation”) and Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (“PRM Regulation”). The respective proposals of the Commission will further be referred to as CP 2023 (Commission Proposal 2023) APR (Air Passenger Rights), PRM (Air Passenger Rights for Disabled Persons and Persons with Reduced Mobility), SPR (Ship Passenger Rights), BPR (Bus Passenger Rights) and RPR (Rail Passenger Rights). 55 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (“Ship Passenger Rights Regulation”). 56 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (“Bus Passenger Rights Regulation”). 57 Regulation (EU) No 2021/782 of the European Parliament and of the Council of 29 April 2021 on rail passengers’ rights and obligations (“Rail Passenger Rights Regulation”). 58 Article 8(1) point (a) Air Passenger Rights Regulation. 59 Article 2 point (z) CP 2023 APR. 14 MICHAEL WUKOSCHITZ
points (8) and (9) respectively of Article 3 of Directive (EU) 2015/2302 other than a carrier’: An organiser, however, usually contracts in its own name and is not a mere intermediary. Furthermore, the Air Passenger Rights Regulation already includes a defintion of ‘tour operator’ meaning, with the exception of an air carrier, an organiser within the meaning of Directive 90/314/EEC.60 The proposal does not sufficiently take into account the significant differences between • the purchase of a flight ticket through an intermediary and • the integration of air carriage into a package travel contract. While in the case a purchase through an intermediary, the air carrier becomes the contractual partner of the passenger (regardless of whether it operates the flight itself or has it operated by another carrier), in the case of a package travel contract, it is the organiser with whom the traveller enters into a contractual relationship. If all travel services bundled in the package travel contract are charged at an all-inclusive price, the passenger does not even know the price of the flight. If, in the event of cancellation or long delay of a flight included in a package or in the event of (unjustified) denied boarding on such a flight, the passenger decides not to make use of alternative transport, this will also have an impact on the other travel services included in the package. It should therefore be distinguished between booking an air ticket through an intermediary and purchasing a travel package combined by an organiser. Contrary to an agent, the organiser is always responsible for the provision of the travel services included in the package travel contract,61 so that in the case of a travel package it could be considered obliging the carrier to reimburse the organiser instead of the passenger. The reimbursement process itself62 seems far too complicated and remote from practice: • the air carrier shall reimburse the intermediary within seven days from the passenger’s choice in accordance with Article 8 (1) (a), in one transaction through the same payment method which was used at the time of booking, and linking the payment to the original booking reference; 60 Surprisingly, no adjustment to the definition of the PTD 2015 is proposed. 61 Article 13(1) PTD 2015. 62 Article 8a No. 5 (a) and (b) CP 2023 APR. 15 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
• the intermediary shall the reimburse the passenger via the original payment method, at the latest within a further seven days; and • inform the passenger and the air carrier thereof. If the passenger does not receive the reimbursement within 14 days, the operating air carrier shall contact the passenger at the latest on the day following the expiry of the 14-day period in order to receive the payment details for the reimbursement. Upon receipt of these payment details, the operating air carrier shall reimburse the passenger within seven days and inform the passenger and the intermediary thereof. This goes along with an obloigation of the intermediary to provide the contact details of the passenger and the booking details ‘to the air carrier’.63 It’s unclear though whether this refers to the contracting air carrier or the operating air carrier. Overall, it would probably have been simpler and more expedient to grant the airlines a longer period for reimbursement (e.g. two or three weeks), to allow them to reimburse through intermediaries without restriction, but to burden them with the risk that the payment will not be forwarded by the respective intermediary (in time). 2.2. Disabled passengers and passengers with reduced mobility According to Article 4(2) of the Regulation on the rights of disabled persons and persons with reduced mobility when travelling by air,64 in order to meet applicable safety requirements, an air carrier or its agent or a tour operator may require that a disabled person or person with reduced mobility be accompanied by another person capable of providing the assistance required by that person. The Commission prpopeses to add a setence whereas such an accompanying person shall travel free of charge and, where practicable, sit next to the person with disabilities or reduced mobility. The provision has the clear purpose of facilitating access to air transport for people with disabilities and not deterring them from using these transport services by incurring additional costs for an accompanying person required for safety reasons. The proposal is therefore to be welcomed, even if it places a burden on the air carriers, who for their part must comply with safety regulations and not arbitrarily demand accompanying persons. 63 Article 14a CP 2023 APR. 64 Regulation (EC) No 1107/2006. 16 MICHAEL WUKOSCHITZ
2.3. General amendments for all passenger rights regulations Service quality standards65 shall be established for all means of transport covered by the aforementioned regulations and a quality management system be implemented to maintain service quality. The respective perfomance shall be monitored and a report be published on the carrier’s website. The Commission also wants to establish common forms for compensation and reimbursement requests, to be made available in all Union languages on the Commission’s website.66 However, the use of the form shall not be mandatory for the passengers and the carriers shall not be allowed to reject a request solely on the grounds that the passenger has not used that form. Further proposals concern a risk-based approach to the monitoring of compliance with passenger rights,67 sharing of information with national enforcement bodies68 and information about alternative dispute resolution by national enforcement bodies.69 III. NEW REGULATION ON PASSENGER RIGHTS IN THE CONTEXT OF MULTIMODAL JOURNEYS While the proposals above all relate to amendments of existing legal acts, the Commission also proposes a completely new regulation, concerning passenger rights in the context of so called ‘multimodal journeys’.70 This poposal intends to address difficulties of passengers who, as part of their journey, switch from one mode of transport to another, such as combinations of a flight with a rail service, or a rail service with a coach service. A ‘mulitmodal journey’ is defined as ‘a journey of a passenger between a point of departure and a final destination covering at least two transport services and at least two modes of transport’.71 The proposal aims to ensure • non-discrimination between passengers with regard to transport conditions and the provision of tickets; 65 Article 15a CP 2023 APR; Article 10a CP 2023 PRM; Article 24a CP 2023 SPR; Article 26a CP 2023 BPR. 66 Article 16aa CP 2023 APR; Article 19a CP 2023 SPR; Article 19a BPR. 67 Article 16ba CP 2023 APR; Article 14a CP 2023 PRM; Article 25a CP 2023 SPR; Article 28a CP 2023 BPR. 68 Article 16bb CP 2023 APR; Article 14b CP 2023 PRM; Article 25b CP 2023 SPR; Article 28b CP 2023 BPR. 69 Article 16bc CP 2023 APR; Article 14c CP 2023 PRM; Article 25c CP 2023 SPR; Article 28c CP 2023 BPR. 70 Proposal for a Regulation of the European Parliament and of the Council on passenger rights in the context of multimodal journeys COM(2023) 752 final (further referred to as ‘CP 2023 MMJ’). 71 Article 3(1) CP 2023 MMJ. 17 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
• minimum and accurate information to be provided to passengers in an accessible format and in a timely manner to passengers; • passengers’ rights in the event of disruption, in particular in the context of a missed connection between different transport modes; • non-discrimination against, and assistance for, persons with disabilities and persons with reduced mobility; • the definition and monitoring of service quality standards; • the handling of complaints; • general rules on enforcement.72 With regard to passenger rights in case of a disruption of the journey because of a missed connection, the poposed regulation distinguishes between • a (single) contract for a multimodal journey containing successive transport services operated by one or more carriers (‘single multimodal contract’);73 • a ticket (or tickets) for a multimodal journey representing separate transport contracts combined by a carrier or intermediary on its own initiative, and purchased by a single payment by the passenger (‘combined multimodal ticket’);74 and • tickets for a multimodal journey representing separate transport contracts offered together by a carrier or intermediary, and purchased by separate payments by the passenger (‘separate multimodal tickets’).75 3.1. Single Multimodal Contract Where a passengers misses a connection of a subsequent transport service during a multimodal journey, concluded under a single multimodal contract, or is reasonably to be expected that they will miss a connection due to a delay or cancellation of a preceding transport service under that same contract, the contracting carrier shall immediately offer the passenger the choice between reimbursement of the full cost of the ticket, and when relevant, a return service to the first point of departure at the earliest opportunity, continuation or re-routing, under comparable transport conditions, to the final destination at the earliest opportunity or at a later date at the passenger’s 72 Article 1 CP 2023 MMJ. 73 Article 3(7) CP 2023 MMJ. 74 Article 3(8) CP 2023 MMJ. 75 Article 3(9) CP 2023 MMJ. 18 MICHAEL WUKOSCHITZ
convenience.76 These options correlate with those under the Air Passenger Rights Regulation.77 If the passenger opts for the reimbursement, it shall be paid within 14 days after the receipt of the request.78 Where the passenger has ‘bought the single multimodal contract’79 through an intermediary, the reimbursement may be made through that intermediary,80 at conditions similar to those suggested for an amended Air Passenger Rights Regulation.81 Furthermore, passengers under a single multimodal contract are entitled to assistance when they miss a connection of a subsequent transport service.82 Similar to the Air Passnger Rights Regulation, the assistance comprises of meals and refreshments in reasonable relation to the waiting time and hotel or other accommodation, and transport between the terminal and place of accommodation, in cases where a stay of one or more nights or an additional stay becomes necessary. However, restrictions apply. Despite the similarity of the claims with those under the Air Passenger Rights Regulation, there is also a significant difference in that, according to the proposal, these are to be directed against the contracting carrier, whereas under the Air Passenger Rights Regulation it is always the operating air carrier which is responsible. For reasons of passengers’ awareness, a standardised regulation would be desirable, whereby it would probably make the most sense to provide for a joint and several obligation on the part of the contractual carrier and the actual carrier (as under the Montreal Convention, for example). Under a single multimodal contract, there is no standardized compensation to be paid to the passenger in case of a missed connection. 3.2. Combined Multimodal Ticket If the passenger misses one or more connections subject to a combined multimodal ticket, the carrier or intermediary which sold the ticket shall be liable to reimburse the total amount paid for that ticket and, to pay a compensation equivalent to 75 % of that amount.83 76 Article 7(1) CP 2023 MMJ. 77 Article 8(1) Air Passenger Rights Regulation. 78 Article 7(4) CP 2023 MMJ. 79 A contract is not ‘bought’ but concluded. Such questionable terminology is not a sign of legislative quality. 80 Article 8(1) CP 2023 MMJ. 81 See point 2.1. above. 82 Article 9(1) CP 2023 MMJ. 83 Article 10(1) CP 2023 MMJ. 19 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
This liability, however, is easy to avoid: it is sufficient to explicitly and clearly mention on the ticket, or on another document or electronically in a manner that allows the passenger to reproduce the information for future reference, that the combined multimodal ticket consists of separate transport contracts with no right under this Regulation to reimbursement, re-routing, assistance or compensation in case of missed connections. Of this, the passenger has to be clearly informed prior to the purchase.84 For the category of separate multimodal tickets, the Proposal contains a definition, but no legal consequences linked to it. Why this category exists at all therefore remains questionable. 3.3. General Provisions The general provisions of the proposal concern a ban on direct or indirect discrimination on the basis of the passenger’s nationality or of the place of establishment within the Union of the carrier or intermediary,85 information obligations of carriers and intermediaries before and during the multimodal journey86 and access of other carriers and intermediaries to information,87 non-discrimination of persons with disabilities or reduced mobility88 and information89 and assistance90 to these persons. As the poposal for the amendment of the various passenger rights regluations, the proposed regulation on multimodal journeys also contains provisons on service quality standards,91 complaint handling,92 information and enforcement.93 3.4. Conclusions It is to be welcomed that the Commission is attempting to close the protection gap that can arise when different modes of transport are used in succession. However, from the PTD 2015, the European legislator could have learned that complex concepts don’t work out in practice. It could also have been understood that companies are only too happy to make use of exemptions and that an easily implemented exception can therefore remove any practical relevance from a rule. 84 Article 10(2) CP 2023 MMJ. 85 Article 4(1) CP 2023 MMJ. 86 Article 5 CP 2023 MMJ. 87 Article 6 CP 2023 MMJ. 88 Article 12 CP 2023 MMJ. 89 Article 13 CP 2023 MMJ. 90 Article 14 CP 2023 MMJ. 91 Article 17 CP 2023 MMJ. 92 Article 19 CP 2023 MMJ. 93 Articles 21 to 25 CP 2023 MMJ. 20 MICHAEL WUKOSCHITZ
IV. OVERALL ASSESSMENT In my view, the Commission’s proposals are likely to fall well short of the objective of simplification and clarification. The proposed rules are often too complex and impractical. More courage could have been shown in both package travel law and passenger rights and the existing concepts could have been fundamentally rethought instead of just making partial additions, codifying CJEU case law and creating further bureaucracy. Experience shows that a higher density of regulation does not necessarily lead to greater clarity. Each additional sentence can lead to further issues of interpretation. Some problems with the current legal situation are completely ignored by the proposals. Inconsistencies, such as imposing obligations on the contracting carrier at one time and on the operating carrier at another, make it more difficult for those affected to enforce their rights. The fact that the sustainability repeatedly emphasised in the justification for the proposals is hardly reflected in the proposed regulations has also already been criticised in the scholarship.94 It is to be hoped that significant changes will be made in the further legislative process. Some proposals also appear to be completely unnecessary. After reading the proposals - and perhaps taking into account the comments in this article - everyone should decide for themselves what they consider to be a ‘highlight’ and what they consider to be a low point. 94 Tonner, Das Passenger Mobility Package der EU-Kommission im Kontext des europäischen Verbraucherrechts: Wo bleibt die Nachhaltigkeit? VuR 2024, 283. 21 THE NEW PASSENGER MOBILITY PACKAGE – HIGHLIGHTS AND LOW POINTS
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