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
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