European law provides for the protection of travellers who purchase packages by requiring the professionals who issue them, i.e., travel agents, to provide a financial guarantee and to be held accountable for their proper execution. Customers are protected against the risk of financial failure that could undermine their repatriation or reimbursement. And in case of problems in the execution of the package, before and after departure, the travel agent is a kind of one-stop shop accountable for all the providers involved in the package. At a time when travellers are tempted to put together their own package via the internet by purchasing the various services separately, it is important for travel agents to create awareness of the protective scheme that is part of a package travel contract. It is therefore crucial to define the concept of package, a task made complex by the digitalisation of tourism.
The Travel Directive of 2015, transposed in 2017 into the Tourism Code, adopts a pluralistic and broad definition of package to take account of the involvement of travellers in its design with the help of digital technologies. A package is defined by its composition and by how it is composed. It should be noted that the law refers to the “sale” of packages, which excludes “non-market” packages, such as school exchanges staying with a host as a non-paying guest.
Package travel, a specific combination of services
Firstly, a package is a combination of at least two different travel services for the same trip or stay and lasting more than 24 hours or including one overnight stay; hence the term “package”, as opposed to the isolated “basic” service. But not every combination is a package. It must relate to a “travel service” which may be either passenger transportation, accommodation (non-residential and non-integrated with transportation), vehicle rental or another “tourism service” not included in a travel service (such as access to an activity or a shuttle included with accommodation or transportation). In the broad sense, the tourism service refers to the provision of a leisure service. The flight + hotel formula is indeed a package since it combines two travel services. But if a single travel service is combined with a tourist service as above (hotel + yoga class), the package qualification requires the tourist service to be purchased prior to the performance of the travel service and its value to represent a significant part of the combination (25% of the package) or to be an essential feature of the combination. As for the combination of two tourist services without a travel service, it is not a package.
“Since travel services may be combined in many different ways, it is appropriate to consider as packages all combinations of travel services that display features which travellers typically associate with packages”
Directive 2015/2302, consid. 8
In exceptional cases, the Travel Directive exempts certain packages from the protective regulation available to travellers: those resulting from a framework agreement between a tour operator and a company to organise business trips for its employees and those offered occasionally, for profit, to a limited group of travellers. Going beyond the directive, French law also has special provisions on packages offered by associations organising the collective hosting of minors on the national territory. It exempts them from registration and therefore from having a financial guarantee and liability insurance. However, the derogation does not apply if the minors’ stay is organised outside metropolitan France.
Package travel, a changing concept underpinned by e-commerce
Secondly, the package combination can be arranged in many ways. On the one hand, it may result from a single contract concluded between the traveller and the travel agent. It is the package historically offered by travel agents both on catalogue (pre-designed) and tailor-made (à la carte), even dynamic in the digital age (the traveller combines the tourist services from the website or the tour operator’s platform).
On the other hand, the combination may result from separate contracts in two situations. Either it is a formal criterion that triggers the qualification of package: services are purchased from a single point of sale (online or offline), or are sold at an all-inclusive price or under the term “package”. Or it is the criterion of the assembly of contracts that is adopted: services are purchased from different providers in a short period of time via related online booking procedures (click-through). Specifically, the traveller reserves a first service on the website of a provider (hotel) which then directs him to the website of another (car rental company) and, within 24 hours, he signs a contract with the second provider to whom the first has transmitted his contact details and payment methods. Since the traveller may believe that the operation is one overall unit, of which the first provider is the main organiser, the law sees it as a package with the protective scheme associated with it.
“In order to enable consumers and businesses to benefit fully from the internal market, while ensuring a high level of consumer protection across the Union, it is necessary to further approximate the laws of the Member States relating to packages and assisted travel arrangements.”
Directive 2015/2302, consid. 6
It is to be noted that if the combination is made within 24 hours of the initial booking but without transmission of the personal and bank details of the traveller from the first provider to the second, it is not a package but a “linked travel arrangement”! This concept, created in 2015 by European law, targets a professional (such as a carrier) who simply encourages the targeted purchase of an additional service (such as an overnight stay) via internet links. He is not an “assembler” as in the Click-through package but a “facilitator” helping the traveller to book separately with various service providers. It is difficult for the traveller, who uses a platform or an e-commerce site for tourist services, to grasp the difference in the business model…
- Directive 2015/2302 du 25 novembre 2020 relative aux voyages à forfait et aux prestations de voyage liées: articles 2 et 3.
- Code du tourisme: article L. 211-2.
- Code de l’action sociale et des familles: art. L. 227-6, issu de la loi n° 2019-486 du 22 mai 2019.
- CJCE, 11 février 1999, aff. C-237/97 CJUE, AFS Intercultural Programs Finland.
- Bazin-Beust Delphine, «Les voyages à forfait après la directive Travel : quelle sécurité, pour quels voyageurs?», dans Transport et sécurité. LexisNexis, 2020, p. 375.
- Coulon Cédric, 2019, «La responsabilité des agents de voyages, trente après : les bronzés font du tri», RCA. n° 2, dossier 10.
- Lachièze Christophe, 2020, Droit du tourisme. Lexisnexis, 288 p.
- Tissot Laurent, 2000, Naissance d’une industrie touristique. Les Anglais et la Suisse au XIXe siècle. Lausanne, Éditions Payot, 302 p.