Pre-contractual information duties under the Package Travel Directive:
a study of the implementation of the Directive under Portuguese and
English law
Manuel Mota European Private Law Dr. Candida Leone 28th July 2017
Abstract
Pre-contractual information duties are an extremely important part of the acquis communautaire. These duties are a suitable mechanism in order to ensure consumer protection while motivating the internal market. This thesis discusses the positive aspect of promoting information duties prior to the conclusion of a package travel contract.
The problem regarding information duties and pre-contractual liability is that there is no concluded contract. Thus, some Member States, such as England, do not seem keen on imposing a duty of care in this stage of the contractual relationship. However, often these duties must be integrated in those national systems which can potentially be problematic for being against the overall spirit of the system.
To understand their impact, this thesis compares the implementation of the Package Travel Directive between Portugal and England. Portugal, as a civil law country, carries out an approach that takes into consideration the period before the conclusion of the contract. England, as a common law country, does not usually attribute relevance to this phase of the life of a contract. This is to understand whether the current system gives a sufficiently high protection of consumers, from a EU Consumer law perspective.
Furthermore, the adoption of a new Package Travel Directive is discussed in this thesis, stating the relevant differences comparing to the previous regime. Albeit not having changed a lot with regard to pre-contractual duties, the new Directive came to clarify some aspects the old regime was not clear about. The inclusion of the new Directive in this thesis is to problematize whether or not the consumer protection has increased, decreased or stayed equal with the adoption of this new legislative text. For instance, who is responsible for the performance of the package and for providing information. Moreover, the new Directive broadened the scope of application, clearly extending it to online booked packages in click-through links. This is an aspect that gives topicality to the thesis.
As a member of the European Union, England implemented pre-contractual duties for package travel contracts. In case of breach of those duties, there is a fine. Differently, Portuguese law prescribes contractual liability in case of failing to provide those informations. These different approaches are problematized throughout the thesis, trying to understand what motivated the disparities.
The findings of this thesis illustrate that information duties should not be overlooked and seem to be a crucial aspect of the regulatory approach of the European legislator in order to ensure equitable consumer protection in the Union.
Table of contents
Abstract... 2
Chapter 1: introductory remarks 1.1. Introduction... 4
1.2. Preliminary remarks... 7
1.2.1. Pre-contractual stage... 7
1.2.2. Culpa in contrahendo... 8
1.2.3. Duty to inform and liability in Portugal... 8
1.2.4. Information duties and remedies in England... 9
Chapter 2: The Directive 2.1. The Package Travel Directive: from 1990 to 2015... 12
2.1.1. Overview of the 1990 Directive... 12
2.1.2. The path to a new Directive... 12
2.1.3. The new Directive... 14
2.2. Analysis... 16
2.2.1. What are the aims of the Package Travel Directive?... 16
2.2.2. Did the aim change in 2015?... 17
2.2.3. What are the relevant mechanisms under the Directive to achieve it?... 17
Chapter 3: The Member States 3.1. Portugal and the Directive... 20
3.1.1. The evolution of Portuguese legislation... 20
3.1.2. The current regime... 20
3.1.3. The Portuguese liability scheme... 22
3.2. England and the Directive... 23
3.2.1. Overview of the English regulations 1992... 23
3.2.2. English liability framework... 24
3.3.3. The (in)existence of culpa in contrahendo... 26
3.3. The national implementations evaluated... 27
3.2.4. How does the implementation of the Directive fulfill its aims?... 27
3.2.5. Which system guarantees more consumer protection and why?... 28
Chapter 4: concluding remarks 4.1. Conclusion... 30
Chapter 1: introductory remarks 1.1. Introduction
In an increasingly globalized context, traveling still remains an important aspect of many people's lives. The European Union facilitates these travels by establishing four freedoms. These are the free movement of goods, capital, freedom to establish and provide services and the free movement of persons. The latter is the most relevant one for this topic.
This freedom aims, among other things, at establishing an internal market by making sure that everyone can move around as much as they want with very few restrictions. This is a corollary of the Union.
Enabling the Europeans to move freely within the European borders is certainly a positive factor that provides for a more united Europe while motivating cross-border trade. However, it also seems dangerous, for consumers who engage in the single market can also be targets for companies. Put differently, in a contractual relationship between a professional party and an individual, the latter is the one who bears the greatest risk for many reasons. Plus, in the digital era we live in, it is very easy to book a travel online and a contract is concluded within a few minutes. This had me wondering about the consumer protection in the booking of travels in a EU consumer law context. Consumers who, for instance, book a flight and a hotel at once will in principle fall under the scope of the Package Travel Directive which is an instrument that aims at protecting consumers, but to what extent is this protection effective?
This protection can be achieved by extensively regulating information duties before the conclusion of the contract and consequences when those duties are not properly fulfilled. Thus, this is a very crucial aspect of consumer protection and is what motivated me to write this thesis. One way for someone not to act in good faith before the conclusion of a contract is by not disclosing relevant information. In other words, in principle, when one contracting party has access to relevant information regarding the contract, they must inform the other party.1 Information duties must not be confused with the duty of disclosure. The latter is a situation in which one party – the seller – has some relevant information to hide and is forced to deliver it due to this duty, whereas the information duties aim at having a transparent relationship between contracting parties.2
Apart from the specific information related to the object of a certain contract (disclosure), there are usually standard information that must be given by the party prior to the conclusion of a contract
1 This is the rule for Civil Law countries. 2 See Ruth Sefton-Green... page 10.
(information duties). This is the case for contracts concluded between a professional party and a consumer – there are various examples of contracts that require some mandatory information before the conclusion. Information duties are a very protective mechanism3 that aim at striking a balance between the contracting parties, because one of the parties is in a position of superiority for a number of reasons such as knowledge and bargaining power.
If this information is not provided in the stage prior to the contract, and it should have been, there might be a case of pre-contractual liability. The core idea here is that information duties are a crucial aspect of the pre-contractual stage and if not provided, there can be legal remedies.4
There are numerous examples in which information duties and the pre-contractual stage are relevant in the acquis communautaire. One of those examples is precisely the topic of this thesis: the Package Travel Directive. Nevertheless, it is not hard to find other examples, such as the Time-share Directive5 (which has, under article 4, a list of aspects that must be disclosed before the conclusion of the contract). Articles 5 and 6 of the Consumer Rights Directive6 are also an example of information requirements in the acquis.7 There are many other examples which will not be referred for the sake of brevity. The idea to keep in mind is that the pre-contractual stage and information duties are relevant in a European context.
One might ask what substantiates this relevance. One possible answer lies in the fact that this is an approach protective of consumers. In fact, obliging sellers to information duties before the conclusion of a contract creates a safer environment for consumers to buy services and goods and this motivates the internal market to thrive. That is one of the reasons why the European legislator seems to be keen on the relevance of the pre-contractual stage. There are other reasons, for instance to protect the consent of the parties, to provide informational clarity and to provide for a moral duty of honesty.8
In 2015 a new Package Travel Directive came to replace the old 1990 version. This intrigued me as to what differences could there be regarding information duties between the two Directives.
Furthermore, the Member States of the European Union have different approaches in general,
3 See ibid.... page 11.
4 See, for instance, case 306/10.0TCGMR.G1.S1, Supremo Tribunal de Justiça. This is a case in which an insurance company was held liable for not providing certain information before the conclusion of the contract.
5 Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis.
6 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council 7 For further understanding, see Thomas Wilhelmsson and Christian Twigg-Flesner... page 461.
namely due to the fact that there are two big legal families: the Civil Law family and the Common Law family. The approach is deeply different in the two legal families and that is what justifies the choice of studying Portugal, which is a Civil Law country and England, which is Common Law. Moreover, the fluency in both languages was also a decisive factor for it allows me to research original sources.
Even though there is no harmonized European contract law as of this moment, there are many shared aspects between Member States due to the implementation of consumer law directives. This is a highly developed topic in European legislations. Many aspects of consumer law are in a grey area, very closely connected to contract law. Hence, in a way, there is a small harmonized system of contract law currently in the Union, regarding contracts concluded between consumers and professionals.
Regarding the methodology for this thesis, it will be an analytical paper, from the EU Consumer Law perspective. This implies some level of comparison between the selected legal systems, although the core methodology won't be of a comparative legal research per se. In order to do so, the thesis will start by analyzing the Directives. Afterwards, there will be made an analysis of the national implementations by the selected legal systems – Portugal and England – as well as an evaluation as to which of the approaches seems to be more suitable in addressing the problem at stake. Lastly, the concluding remarks will be exposed. The point is to understand whether or not the Directives reach a sufficiently high and consistent level of consumer protection in the Union and how their national implementation fulfills the aims set out by the Directives.
This thesis will be mainly descriptive but also explanatory in the sense that it will be asked why are those differences in place. Moreover, there will be a slight evaluation made in the analysis of the topic, for some subquestions require this approach.
In light of the above, the research question I seek to answer in the end of this research is: Is the implementation of the Package Travel Directive by Portugal and England compliant with the EU consumer protection aim and to what extent does this implementation provide for a sufficiently high and consistent protection?
In order to do so, there are several subquestions that must be addressed. These are listed into three groups, as follows.
What are information duties? Do pre-contractual information duties give a higher consumer protection? What is the relation of these duties with the internal market? How do these duties correlate to pre-contractual liability?
Relating to the Package Travel Directive:
What are the aims of the Package Travel Directive? What are the relevant differences since 1990? Did the aim change? What are the relevant mechanisms under the Directive to achieve it?
Relating to the Member States:
How was the Package Travel Directive transposed and applied in Portugal and England? What motivated such differences? How do the findings relate to the aim of the Directive? Which system guarantees more consumer protection and why?
1.2. Preliminary remarks
This subchapter's aim is to achieve a contextualization by clarifying some relevant aspects that will be central throughout the thesis. Thus, there will be made a concise analysis of the concepts of pre-contractual stage; culpa in contrahendo and an overview on how the English and Portuguese systems abstractly cope with information duties and liabilities.
1.2.1. Pre-contractual stage
One might wonder what is the relevance of the pre-contractual stage in the life of a contract. Indeed, before the conclusion of a contract, there are already some duties that must be taken into consideration. This varies between Member States, especially taking into consideration the differences in this regard between the Civil Law and Common Law countries.9 Still, before the conclusion of a contract, there is usually a phase in which the parties discuss its terms, these are the negotiations.10 The question that thus arises is to what extent should one hand out relevant information to the other party in this stage prior to the contract.
When talking about the pre-contractual stage, one must distinguish between consumer contracts and general contracts. Consumer contracts might require information duties before the conclusion of the contract, whereas general contracts might impose a duty of disclosure of relevant information by the
9 See 1.2.3.
seller. These concepts are fairly similar, for they both impose handing out information prior to the conclusion of the contract, but they have different scopes.11 The information duties will be specifically discussed infra.
1.2.2. Culpa in contrahendo
This is a latin phrase that reports to situations in which there is somehow fault on the formation of the contract. This doctrine, developed by Rudolf von Jehring, states that there is a duty to negotiate in good faith before the conclusion of a contract. Put differently, there is a minimum required duty o f diligentia12 when one creates a reasonable expectation of concluding the contract on the other party. The author argues that the fault principles must regulate not only the actual stage of concluding the contract, but rather also the stage before.13 When one does not act compliant with the good faith principles, there might be a situation of culpa in contrahendo which can lead to remedies.14
The nature of this liability is not unanimous among the doctrine, and it even varies within scholars from the same country, although there are some tendencies in the different national systems. This illustrates the complexity of this mechanism, which has been very discussed since its first formulation by Jehring. Notwithstanding, some authors argue that it has a contractual nature15; some other, that it is a tort16 and there is even doctrine that argues for a third way of liability, independent of that classic dichotomy.17
In any case, it can be problematic to hold someone liable before the conclusion of a contract for they are not yet clearly bound by a valid contract. That is why this is a very complex topic that motivated a lot of debates in the national systems.
1.2.3. Duty to inform and liability in Portugal
Portugal, as a Civil Law country, has a system which is eager to regulate the pre-contractual stage18 and in which it is common to require good faith in negotiations before the conclusion of the
11 The leading case on duties to disclose in England is Smith v Hughes [1871] LR 6 Q.B. 597. See also Shy Jackson... pp. 675-686.
12 Carefulness contracting.
13 See Rudolph von Jehring... chapter I.
14 See Dário Moura Vicente... page 4. See case 5523/05.2TVLSB.L1.S1 [2013], Supremo Tribunal de Justiça 15 This is the dominant doctrine in Germany. See Frederico Afonso Cavaleiro Prata... page 7 and 50 ff. 16 This seems to be the approach under Italian and French case law. See ibid., page 50 ff.
17 Some Portuguese authors argue this for considering the pre-contractual liability to have some mixed elements of tort and contractual. See ibid. page 56.
contract.19 This somewhat vague concept20 is hard to grasp and a lot has been written in order to explain it. There is no succinct definition for it but one must keep in mind that, when negotiating, one is already bound by the truth and is not allowed to deliberately harm the other party.21 This can include providing information before the conclusion of the contract. Both information duties and duty to disclose are part of the Portuguese regulatory approach22, but the core idea when discussing Portuguese law is that before the actual conclusion of the contract, there are already a number of duties to take into account which, failing to be fulfilled, (can) give rise to liability.
Under Portuguese law, there are mainly two forms of civil liability. These are tort and contractual liability.23 Contractual liability – the relevant form for this topic – has a presumption of fault, which means that, although it still depends on the fault of one party, this requirement does not have to be assessed in court proceedings, without prejudice to rebutting the presumption.
The culpa in contrahendo doctrine has a prominent role in Portuguese law. It leads to liability prior to the conclusion of the contract. This liability in contrahendo follows the usual proceedings for contractual liability. We start by applying article 227 (this is the particularity of pre-contractual liability, when the liability is in contratu this article is not applicable) and then articles 483, 798 and 799. The consequence is the plaintiff being awarded with damages. These damages cover the negative interest of the contract24, meaning, the reliance interest is recoverable. This scheme is backward looking because the party will be brought to the position in which would have been if he or she hadn't relied on the contract. For instance, expenses must be compensated.25 Indeed, even though the contract has not yet been concluded, there is an expectation of concluding it and the liability arises from it. Hence, the scope of contractual liability can expand to before the conclusion26, and even to after the contract is already over.27
There is another form of liability under Portuguese law of relevance for my thesis characterized for being independent of fault – meaning that in court proceedings this requirement is not assessed. That is why it is called objective liability.28 It lacks the subjective aspect, which is the fault of the party. Unlike contractual liability, which is subjective for depending on fault, objective liability does not require fault at all. The party knows, ab initio, that if something goes wrong, they will be
19 See case 1212/06.9TBCHV.P1.S1, [2010], Supremo Tribunal de Justiça
20 In fact, Lord Ackner in 2005 stated that the duty to negotiate in good faith is “unworkable in practice”. 21 See António Menezes Cordeiro. “Da Boa Fé …”; second chapter.
22 See, inter alia, Lino Diamvutu... page 525.
23 See António Menezes Cordeiro. “Tratado...” chapter XIV. 24 See Paulo Mota Pinto... paragraph 1, chapter III.
25 Case 1807/08.6TVLSB.L1.S1 [2011], Supremo Tribunal de Justiça
26 See, inter alia, case 1429/06.6TBALQ.L1-8 [2011], Tribunal da Relação de Lisboa.
27 Culpa post pactum finitum is also a possibility. In this scenario, the contractual relationship is already over but there are still some duties of good faith in place.
held liable, even if they don't intervene wrongly and thus causing damages. There are only a few specific scenarios that lead to this liability in the Civil Code,29 without prejudice to disperse legislation, as long as it is expressly mentioned in the legislative text.
1.2.4. Information duties and remedies in England
The particularity of the English system, unlike most Civil Law countries, is that there is no general duty to negotiate in good faith.30 Thus, this is where it might be problematic to apply the requirement for information duties, for they impose a duty of care during negotiations. Under general English contract law, the idea is that it is on the buyer's side to make sure the good is compliant with what was intended.31In other words, the seller is not obliged to inform the buyer about specific aspects of the good, even knowing the buyer's intention. Although the seller must not deceive the buyer,32 they can resort to silence which is, in principle, safe. Hence, there is a duty of care in negotiation starting from the moment the seller says something. Negotiations are considered to be “at arm's length”.33
England does not comply with the culpa in contrahendo doctrine and tends to be very reluctant to impose pre-contractual liability.34 This approach can be explained by a number of reasons from various natures, such as economical, social and political. There are, however, ways to go around this denial, for instance by applying tort of deceit, if the plaintiff manages to prove the defendant made a false representation and that is what led the first to act.35 It is crucial to prove the party made a false statement during negotiations, so this reinforces the idea that sellers can resort to silence to safeguard themselves.
The remedial scheme under English law differs greatly from the continental approach. Although there is some Europeanization of English law due to the implementation of Directives, there are still a lot of variations from what we encounter in most civil law countries, also because Directives do not always set a remedial scheme leaving it up to the Member States to regulate.36 The aspect of relevance for my thesis is mainly the denial of pre-contractual liability (although there is estoppel, unjust enrichment and mistake as alternative courses of action). This is justified by the fact that
29 See article 499 and ff of the Portuguese Civil Code. These are some examples of objective liability, not all the situations are in the Civil Code.
30 See Alistair Maughan and Sarah Wells... Namely paragraphs 1 and 5. 31 See Smith v Hughes [1871] LR 6 Q.B. 597
32 Esso Petroleum Co Ltd v Mardon [1976] QB 801 33 We can rely on the objective impressions that we have. 34 See John Cartwright and Martijn Hesselink... page 461.
35 Bradford Third Equitable Benefit Building Society v Borders [1941] 2 ER 205, 211. 36 This is the case for the Package Travel Directive, for instance.
there is no general duty of good faith, except for fiduciary relationships.37
In any case, the core idea is that there must be a justification for state coercion or the imposition of contractual liability.38 The latter is a debated issue in English contract law and still not fully accepted by English scholars.39 This is due to historical reasons which won't be discussed here.40 That is one justification why English law sometimes resorts to public law remedies instead of the most common remedies that arise from breaching a contract, in the continental systems.
37 See Jones Day... paragraph 6. 38 See Chris-James Pretorius... page 96. 39 See ibid. pp. 98 and ff.
Chapter 2: The Directive
This chapter starts by describing the old and the new regimes focusing on the changes in the Package Travel Directive. Afterwards there will be made an analysis of the aims of the Directive and how the 2015 version potentially impacts this framework.
2.1. The Package Travel Directive: from 1990 to 2015
2.1.1. Overview of the 1990 Directive
On the 13th of June of 1990 the Package Travel Directive41 entered into force. It was a set of ten articles that had to be implemented by Member States before the 31st of December of 1992.42
The introduction of the old Directive aimed at encouraging and facilitating cross-border trade43 while ensuring that the consumer protection standards were maintained throughout the European Union. Indeed, the old Directive regulates many aspects relating to both the contract per se, as well as the pre-contractual stage.44 It starts by preliminary remarks under article 2, defining relevant concepts such as “package”, “organizer”, “retailer”, etc.
After that, article 3 stipulates matters regarding misleading information. Sub 2 of the same article regulates matters relating to the brochure.45 Article 4 contains the pre-contractual information duties – even though it is not clear who is responsible for providing such information, the organizer or the retailer. Nonetheless, it is stated that before concluding the contract the consumer must be informed about passport or visa requirements, health formalities, among other aspects with a similar regime to the 2015 version which will later be analyzed. Furthermore, this article also regulates the right to cancellation, under sub 6.
2.1.2. The path to a new Directive
In 2005, the Unfair Commercial Practices Directive was adopted46 and it is relevant for, in some
41 Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours. From now on referred to as “the old Directive”.
42 See article 9 of the old Directive.
43 See Rhys Griffiths... First paragraph in fine. 44 See Anne de Vries... page 123.
45 Before the internet era, brochures were “the organizer's main marketing instrument” see Marco B. M. Loos... page 126.
46 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No
aspects, it can be perceived as an intermediary regime between the two Package Travel Directives. Starting by the fact that under article 7(4)(b) of the UCPD, the trader must also provide his or her contact details – this is required under the new system, but it wasn't under the old one. If this information is not provided, the practice is considered to be a misleading omission.47
Another relevant aspect is the explicit concept under article 3 of the old Directive “misleading information”. Although the old Directive did not state that the information had to be given in a “clear, comprehensible and prominent manner”, like the new version, it did have a provision addressing misleading information. Notwithstanding, by applying the “misleading information” under article 3, the result would very much be the same. Hence, in practice, it is not particularly relevant that those specific words were not mentioned in the text of the old Directive. Indeed, “(...) the requirement that the information may not be misleading, and that information provided through a brochure had to be legible, comprehensible and accurate more or less fulfilled the same purpose as its equivalent in the Package Travel Directive 2015”.48 Regardless, this is a step towards implementation uniformity and to make the instruments more coherent among themselves.
The consumers' habits have changed in the last over-twenty years. Online booking of vacations is now a common practice, unlike before. For instance, a study has shown that over half of the accommodation and air traveling booking was made online in 2014.49 Thus, having a Directive from 1990 to regulate package traveling seems to be out of date in that regard. Thus, there was a need to have a new system in place that would keep up with the online tendency that has been registered. A new, broader, provision was needed in order to comprise various scenarios that did not clearly fit the scope of the old Directive, that is what justifies the broadening of the scope of application of the new Directive by expanding the package concept.
The responsibility for providing information duties was entirely uncertain in the text of the old Directive. Those could be entrusted to either the organizer, the retailer or even on both of them.50 These variations within Member States are what leads to legal uncertainty. Thus this was an aspect that also lacked clarification in the new Directive.
One other aspect that is usually a priority of the European legislator is the consumer protection.
2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’). Referred to as “the UCPD”.
47 There must be an invitation to purchase in order to have a misleading omission. For further understanding on this see Marco B. M. Loos, op. cit., page 127. See also Norbert Reich, Hans-W. Micklitz, Peter Ross and Klaus Tonner... page 102.
48 Marco B. M. Loos, op. cit., page 126 in fine and 127 ab initio.
49 See Statistics on ICT use in tourism – Statistics Explained, available at http://ec.europa.eu/eurostat/statistics-explained/index.php/Statistics_on_ICT_use_in_tourism. Web. Accessed 03 May 2017.
Indeed, by having more certainty regarding the consumers' rights, they are more protected. This can be achieved through many ways, in the case of the new Directive, some improvements have been made regarding stronger cancellation rights as well as the price predictability. In a market where consumers feel safe, they are more motivated to trade which leads to the thrive of the single market. Hence, it seems an appropriate approach by the European legislator to make consumers safer by granting them more rights and guarantees when trading.
2.1.3. The new Directive
In November 2015 the new Package Travel Directive was signed and adopted.51
The new Directive entered into force on the 31st of December 201552 and needs to be implemented within two years.53
The new Directive brought a lot of changes, even though it is yet to be seen their impact in practice. The first aspect to be referred was the broadening of the scope of the Directive by expanding the concept of package, in order to keep up with the online market tendency. As mentioned, this was a very inevitable change, taking into account how much has changed in the past years regarding the booking of vacation.
Regarding the pre-contractual stage, the new Directive establishes a number of information duties before the conclusion of the contract. Indeed, article 5 under the heading “Pre-contractual information”, obliges the organizers to inform the customers regarding the main characteristics of the travel services; the trading name and address of the organizer as well as their telephone numbers and e-mail addresses; the total price of the package; the arrangements for payment and the timetable for payment of the balance; the minimum number of persons required for the package to take place and the time-limit; information regarding passport, visa requirements and health formalities; they must inform the buyers regarding the possibility to terminate the contract in return for payment of a termination fee and, lastly, regarding the optional or compulsory insurance to cover the cost of termination or assistance, including repatriation in the event of accident, illness or death.54
As to the responsibility aspect, the new text clarified this by attributing primary responsibility to organizers for many aspects55 without prejudice to the retailer also being responsible. Despite the
51 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. From now on referred to as “the new Directive”.
52 See article 30 of the new Directive. 53 See article 28 of the new Directive. 54 See article 5(a) to (h) of the new Directive.
efforts to get a clear regime for package traveling in the EU, not defining who was responsible for complying with the rights and obligations in the old Directive (i.e., the organizer or the retailer) led to legal uncertainty.
Pursuant to article 6, the pre-contractual information has binding effect. Hence, these informations shall not be altered without prejudice to the parties expressly agreeing to such alterations. In addition, this article also states that these alterations to the informations – if the case may be – must be communicated clearly, comprehensibly and prominently before the conclusion of the contract.56 If the package is to be sold by retailers, they are also bound by the information duties regarding their contact details.57 These duties must be fulfilled by both organizer and retailer. In other words, an organizer cannot escape liability by saying that the retailer should have given the information. Both of them are obliged to ensure that the pre-contractual information is provided and both are bound by it.58 In the end, the consumer might end up getting the same information twice. This way, it is more likely that they have access to that information before the conclusion of the contract.59 This is an improvement in legal certainty, and thus offers more consumer protection for buyers. They now know who will have to deal with the consequences if something goes wrong, from the start. Their interests are certainly safeguarded in that aspect. On the other hand, this also improves legal certainty for sellers (perhaps even more).
This raises the issue of distinguishing responsibility and liability. The first concept translates a duty one has when contracting.60 For instance, both retailers and organizers are responsible for providing certain information, pursuant to the Package Travel Directive. This piece of legislation imposes a rule of conduct on their recipients in such a way that they are compelled to providing that information, this is in the scope of their responsibility as contracting parties. Differently, liability is a remedy. Meaning that when one party acts wrongfully there are legal consequences for such a conduct. Holding someone liable for their actions will inevitably put them in a disadvantaged position,61 for they will have to legally respondfor the damages they caused on the other party. The new Directive does not state the remedies in case of not providing the required information duties and/or non-compliance with the information given. These are left to the Member States to regulate. Meaning that we can't find, in the text of the new Directive, any remedial scheme or liability rules. What can be found, though, are rules regarding responsibility. As mentioned, these
rule, but there are also exceptions in which the retailer is to be responsible, namely in articles 13(1) and 20. 56 See article 6(1) in fine.
57 See article 5(1) ab initio. See also Marco B. M. Loos, op. cit., page 126.
58 See article 13 of the new Directive. See also Sophie Arrowsmith... second paragraph. This will be further discussed
infra.
59 See article 5 paragraph 1 of the new Directive. See also Marco B. M. Loos, op. cit., page 126. 60 See Nobert Reich, Annette Nordhausen Scholes and Jeremy Scholes... page 680 ff.
concepts must not be confused for they report to different scenarios. Responsibility reports to the actions one must undertake pursuant to the new Directive (e.g., providing certain information) and liability reports to fixing a damage. The latter is the one missing in the new Directive, and thus it is up to the Member States to regulate nationally. Hence, when discussing the liability of an organizer or retailer, we must always take into account where it takes place, for we comply with those national rules.
2.2. Analysis
2.2.1. What are the aims of the Package Travel Directive?
There are several aims of the Package Travel Directives62. It seems to me the most notorious one is to protect consumers. The reasoning for this has been stated above, namely for being the weaker party to the contractual relationship, and thus the Directives' goal is to strike a balance between the contracting parties. Also to provide for a safe trading environment for consumers, and thus to encourage cross-border trade. This naturally helps the thrive of the internal market.
Nonetheless, these are not the exclusive aims. The Directives also aim at facilitating the booking of travels and accommodation or other services. This is beneficial for both sellers and buyers. On one hand, sellers sell more for it is easy to conclude these contracts. On the other hand, it also benefits consumers because it expedites the booking process while reassuring them their rights are safeguarded. Again, the single market is also positively influenced by this.
Another aim of the Directives is to comply with the European Union's principles. A corollary trace of the Union is the free movement of persons. Even though this freedom was already in place before the Directive, it is arguable that it was restricted given that this movement could bear some risks to consumers. By implementing the Directive, the consumers' rights are safeguarded and thus the free movement of persons is assured.
Moreover, achieving a level playing field also seems to be an aim of the Directives. Every instrument that targets some level of harmonization will inevitably aim at achieving a level playing field and combating a race to the bottom. In other words, the aim is to make a coherent and similar system throughout the Union and that way the same rights and duties are granted everywhere. The Directives are not full harmonization instruments, but they still regulate many elements that need to be transposed. This way, we are closer to leveling the playing field, rather than having in place a
race to the bottom system, in which people seek the most beneficial legal system for themselves.63 2.2.2. Did the aims change in 2015?
The introduction of a new Directive with regard to package traveling brought some changes. First of all, the aim of the new Directive is, of course, to replace the older version. By replacing the old Directive, the new Directive has a major new aim which is to correct the flaws of the old regime, while updating the regime in accordance to the overall public needs. This is inherent to every new instrument aiming at replacing an older one.
For instance, regarding the responsibility, the new Directive aims at clarifying this aspect by settling who is responsible for the performance of the contract, as well as for providing information duties. Accordingly, the organizer shall be primarily responsible and there is a joint responsibility system regarding information duties, thus providing legal certainty.
Another aim that ought to be highlighted is the goal of keeping up with the market and the context we are all living in. Given that the internet is acquiring such a major role in everyone's lives, the new Directive intends to follow-up with those changes. That is why the package concept has been expanded and now encompasses more scenarios that were not part of the old Directive (at least, not evidently). The inclusion of linked travel arrangements and customized packages is a measure to fulfill the aim of matching the new requirements inherent to the current online market.
Despite these new aims of 2015, the ones that applied to the 1990 Directive are still in place. Consumer protection, facilitating trade and contributing to the growth of the internal market are still applicable. Hence, the aim did not change per se. Simply some new aims and goals have been added, but the framework remains unchanged.
2.2.3. What are the relevant mechanisms under the Directive to achieve those aims?
Pre-contractual information duties play a major role in achieving consumer protection. One of the most important factors that leads to consumers being in a fragile position in a contractual relationship is precisely their lack of information and education.64 Indeed, it is often the case that consumers enter the negotiations unaware of their rights and duties, but also not knowing the sales' methods used by sellers and thus lacking the capacity to resist such methods. Professional sellers know this and can take advantage of it. One way to reduce this impact is precisely through
63 See Laura Halfhide and Joanna Kolatsis... last page. 64 See Carlos Ferreira de Almeida. “Os direitos...” page 179 ff.
information duties and education regarding the sales' methods.65 The proper education in this regard leads to thought-out decisions, hence reducing the risk of damages for consumers.66
Another consequence that arises from imposing these duties is the fact that this also leads to higher trust in the sellers, which leads to more trade. In other words, imposing information duties leads to more equitable negotiations. This is a priority in order to have fair negotiations.67
In sales made online, these duties even gain more relevance. On one hand, consumers cannot assess the seller's body language for they do not know exactly with whom they are concluding a contract. On the other hand, many consumers are not “internet experts”, hence those buyers will inevitably have an information deficit ab initio. This is another reason pro-information duties, in the sense that obliging sellers to provide information before the conclusion of the contract can minimize this impact on consumers.
However, there are some potentially negative aspects that ought to be raised regarding information duties. For instance, it can be argued that imposing information duties might dissuade sellers from trading. Indeed, it would be less risky for sellers to trade without pre-contractual information duties. This is because they would be able to provide information if they wanted, but would also be able not to do so. Hence, if they would simply resort to silence, they would always be safe from liabilities. Imposing information duties makes sellers more fragile for they have to comply with those duties and, if they don't, there are legal remedies in favor of consumers.
In light of the above, there are contradictory arguments both pro and against having information duties in force. Nonetheless, the party who bears the greatest risk is still the consumer for this is the party in a disadvantaged position. Therefore, it seems appropriate to impose information duties before the conclusion of the contract in order to get a balanced contractual relationship in this type of contracts. Indeed, information duties give a higher consumer protection. Firstly, because consumers then know what they are buying and secondly given that imposing these duties to organizers (or retailers, if that is the case) transfers the risk to the latter. This way, consumers are not as susceptible to damages as before, for the organizers (again, or retailers) are bound by those duties. They have to provide them and comply with them. That is why information duties provide further consumer protection.
Regarding the aim to motivate the internal market, pre-contractual duties also play a key role. Indeed, information duties are part of the acquis communataire as mentioned supra and this does not seem to have dissuaded trade in the Union. This statement is based on a study that shows that
65 E.g., by informing consumers about the potentially misleading approaches sellers sometimes make use of. 66 See Iain Ramsay... pp.100-101.
trade has an increasing tendency over the past years.68 It cannot be said that information duties lead to more trade, it would be too hypothetical to state so. However, what can be said, is that imposing those duties does not seem to have negatively impacted the trade and thus it can be argued that the confidence of consumers does not dissuade sellers from trading. This is one of the reasons why information duties are a positive measure of the European legislator for both their recipients -business and consumers.
Information duties are crucial for the internal market. They make consumers more confident in their purchases which leads to more trade. As referred above, the thrive of the single market cannot be attributed exclusively to imposing information duties, but it is clear that those duties did not hold back trade. This way, a more equitable trading environment can be achieved for the imbalance between parties is reduced.
68 See statistics available at http://ec.europa.eu/eurostat/statistics-explained/index.php/Intra-EU_trade_in_goods_-_recent_trends
Chapter 3: The Member States
In this chapter there will be made a description of the system in place both in England and in Portugal. These two Member States haven't yet implemented the 2015 Directive therefore the analysis will be confined to the system currently in place. Afterwards, an evaluation will be made by discussing which solution is more adequate in solving the problems under review.
3.1. Portugal and the Directive
3.1.1. The evolution of Portuguese legislation
The transposition of the Package Travel Directive 1990 in Portugal first occurred through Decreto-Lei 198/93 of the 27th of May.69 This legislation was later altered through the Decreto-Lei 209/97 of the 13th of August.70 This alteration was a recoil in terms of consumer protection, comparing to the previous regime. The old regime had a broader scope of application that was not imposed by the old Directive and that is why the scope was narrowed.71 Despite this recess, the new version also amended the old regime by adding some new fields.
Afterwards, there was a project to create a consumer code in Portugal, in 2006. Even though this project did not go forward, it was made public72 through a document known as Anteprojecto do Código do Consumidor. It was never in force, but it inspired a new legislation – Lei das Agências de Viagens.73 This being stated, we will now move on to analyzing the regime itself.
3.1.2. The current regime
The LAV revoked the Decreto-Lei 209/97.74 The LAV, being more recent, restated and added some aspects to the old legislation. The concept of “package travel”75 is defined equally in both legislations, so that is an element that remained unchanged. Accordingly, both article 15(2) of LAV and article 17 of the old Decreto-Lei 209/97 state that package travels are “touristic travels that
69 Available at http://data.dre.pt/eli/dec-lei/198/1993/05/27/p/dre/pt/html
70 Available at https://dre.tretas.org/dre/84635/decreto-lei-209-97-de-13-de-agosto 71 See Joaquim de Sousa Ribeiro... page 554.
72 Available at http://www.fd.unl.pt/docentes_docs/ma/JCA_MA_13541.pdf.
73 Portuguese for “Travel Agencies Legislation”. From now on referred to as LAV. Formally, Decreto-Lei 61/2011 of the 6th of May. It was amended by the Decreto-Lei 199/2012 of 24th of August and Decreto-Lei 26/2014 of the 14th
of February. Despite these alterations, it is still the legislation in force. Available at https://dre.tretas.org/dre/283908/decreto-lei-61-2011-de-6-de-maio
74 See article 48.
must combine two of the following services: a) transportation; b) accommodation; c) other touristic services not subsidiary of transportation”. The core difference is that through its article 15(2) in fine, t h e LAV introduces a new idea. Accordingly, these touristic services must represent “a significant part of the travel”. The Portuguese legislator often opts-out on conceptual discussions leaving it to the doctrine and case law to deepen their understanding on the subject and that is why this abstract concept is stated in the LAV. It's been argued that the criteria to determine whether or not the services are a significant part of the travel is the fact that, without these services, the travel is not feasible as agreed.76 In these situations, the travel agent must ensure that these services are replaced without further costs to the consumer.77
The traveling brochure is also relevant according to article 19 of the LAV where it is stated that the agency is bound to comply with the provided brochure in the contract to be concluded (except for the cases in which the brochure itself allows the alteration or when the parties agreed to the change).78
There are important information duties in the brochure that must be highlighted. The agency must, before the travel, render the information mentioned under article 21(a) to (i) of the LAV.79 These include, for instance, the schedules and locations of stopovers; the name, address and phone number of the local representative of the agency; how to proceed in case of sickness or accident; among other aspects. This information must be provided in writing and delivered to the consumer in order to ensure that he or she is able to get in touch with the agency in case of unexpected or abnormal circumstances during the travel. It is then up to the agency to solve such situations.80 The major difference in this list is, compared to the old regime, that the LAV adds two new information duties. First, the occurrence of natural catastrophes, epidemics, revolutions and similar situations that might have happened at the destination that the agency knows about or has been notified about;81 secondly, the possibility of termination of the contract pursuant to article 26 of the LAV.82
Another aspect that is extensively regulated in the L A V is the serving of documents. Thus, according to article 17(1), the travel agencies have the duty to deliver to their customers “all the necessary documents in order to obtain the sold service”. On the other hand, article 17(2) states that “when selling a service, agencies must deliver the documents that mention the scope of the contract as well as the characteristics of the service (…)”.
76 Luís Espírito Santo… Point 4.8.
77 See case 895/09.2TBFIG.C1 [2011], Tribunal Judicial da Figueira da Foz. 78 Article 19(a)(b).
79 Inter alia, schedules of departures and stopovers; an emergency contact; the possibility of having an insurance; etc. 80 See Carlos Ferreira de Almeida, “Direito...” page 115 ff.
81 Sub h.
The pre-contractual phase of the contract is also expressly contemplated in the LAV. More specifically in article 16, under the heading “previous information obligation”. Accordingly, the agency must inform the consumers about the need of their national IDs; passports; visas (and the legal deadline to get them); health formalities and, lastly, in case it is an intra-EU travel, the required documents to obtain medical assistance in the event of an accident or sickness. Furthermore, sub 2 obliges the agency to inform the customer about all the clauses in the contract if the form is written. This information does not have to be express, in the sense that it is enough for the agency to serve them with the brochure if all the elements are contained therein.83 Moreover, sub 4 states that “any description of a travel, as well as its price and further conditions of the contract, must not contain deceiving elements nor induce the consumer to mistake”.
3.1.3. The Portuguese liability scheme
Regarding the breach of information duties in the LAV there is no article saying the consequence of that conduct. However, case law tells us that when these informations are not provided before the sale of the travel, there is contractual liability.84 This follows the general scheme of pre-contractual liability. Culpa in contrahendo plays a major role under Portuguese law. As stated, this is a way through which one can be held liable before the actual conclusion of the contract. This pre-contractual liability is expressly regulated under article 227 of the Portuguese Civil Code and is a recurrent topic among Portuguese case law.
According to Portuguese case law, it is not questioned whether a buyer of a package travel contract is entitled to damages when the selling party fails to provide information duties. What seems to be problematic, though, is gathering the requirements that enable the buyer to get compensated. For instance, the case 4701/10.7TBLRA.C1 problematizes whether informing a consumer that visas are not required for the travel is also an information duty. In the end, the court considered that this does not qualify as an information duty for the purpose of the Directive and thus did not award the plaintiff damages.
In case 4701/10.7TBLRA.C185, the plaintiff was not awarded damages after the agency failed to deliver the required information because the purchased travel did not qualify as a package for the purpose of the Directive and thus the case did not fall under its scope. Therefore, although the
83 In other words, they don't have to create a specific document for that end if all the elements are already mentioned in the brochure.
84 See case 31/12.6YRLSB-2 [2012], Tribunal da Relação de Lisboa – after failing to inform the consumer directly and before the conclusion of the contract about the need for a visa for the travel, the travel agency was held liable for breach of information duties.
consumer was not informed about a visa requirement, she wasn't awarded damages. The judge argued that, if she had been in the scope of the Directive, then damages would have been awarded. However, simply acquiring plane tickets does not configure a package travel contract.
As exposed, the apparent trend in Portuguese jurisprudence is to limit damages not by contesting the effectiveness of information duties, but rather to limit this liability through other requirements that are lacking. In any case, it is a common practice to hold someone liable for not providing required information under the Package Travel Directive. For instance, case 32/12.6YRLSB-286 led to damages because the travel agency only informed the buyers about the need for passports on the actual day of the travel and should have done it before. Another example of a case that led to liability of a travel agency is case 782/13.0YRLSB-6.87 The liability was founded on not providing information duties, more specifically the fact that the agency did not inform the consumer of the required documentation to finish their reservation. One other aspect extensively discussed in this case is the good faith principle, for we are in the stage prior to the conclusion of the contract, so that is necessarily an important element.
As highlighted previously, the travel agency is bound by the information given and has to act compliant to what was said. Although the default rule in Portugal for civil liability is either contractual or tort, the LAV prescribes a specific form of liability for cases in which the travel goes wrong for some reason, which is objective liability. Indeed, pursuant to article 29, there is liability independent of fault for non-compliance with the contract.88 Thus, the travel agency is responsible for making sure the travel goes according to plan and is compliant with the information given beforehand.
3.2. England and the Directive
3.2.1. Overview of the English regulations 1992
English law transposed the old Directive through The Package Travel, Package Holidays and Package Tours Regulations 1992.89 The regulations address many practical aspects of the old
86 See case 32/12.6YRLSB-2 [2012], Tribunal da Relação de Lisboa 87 See case 782/13.0YRLSB-6 [2014], Tribunal da Relação de Lisboa
88 See case 614/09.3TVLSB.L1-7 [2015], Tribunal da Relação de Lisboa. – in this case the travel agency was held liable and had to pay damages to the buyers due to a traffic accident that happened during the trip. The travel agency did not have fault in the accident but, regardless, had to pay damages for this trip was included in the package; see also case 2006/2008-7 [2008], Tribunal da Relação de Lisboa. In this case the travel agency was held liable for not booking correctly the hotel, thus had to pay damages.
89 Available at http://www.legislation.gov.uk/uksi/1992/3288/contents/made. From now on referred to as “the regulations”.
Directive, namely its interpretation, application but also contents and formal requirements of the contract, among other things.
What is also regulated under the regulations of deep relevance for this thesis is the stage before the conclusion of the contract. This is emphasized in regulation 4 to 8.
Regulation 4 states that “descriptive matter relating to packages must not be misleading”. This means that before starting the contractual relationship between the parties, the seller can give some information as long as it's not misleading.90 This is the first information duty lato sensu.
The brochures are also addressed under regulations 5, 6 and Schedule 1 to the regulations. Accordingly, these provisions list the consequences in case of breach. Thus, under sub 3 it is written that “an organiser (…) and a retailer (…) thereof shall be guilty of offence and liable” in case of breach, having to pay a fine as stated in (a) and (b) of the same provision.
Regulation 7 reports to the “information to be provided before contract is concluded”, it encompasses information regarding visa requirements, health formalities and “arrangements for security of the money paid over”.91 The consequence for not complying with these requirements is a fine, as clearly stated under (3).
Furthermore, regulation 8 under the heading “information to be provided in good time”, lists four information duties that must be provided before the travel but after the contract, e.g., the time and places of intermediaries stops; etc. In case of not providing such informations the wrongdoer is obliged to the payment of a fine (3).
3.2.2. English liability framework
There is no case law on breach of information duties under English law. This seems to be coherent with the overall English approach to the stage prior to the contract. As mentioned, English law shows reluctance in having a relevant pre-contractual stage. Notwithstanding, there are some considerations that ought to be made regarding the English approach to the issue at stake.
England prescribes a fine in case of not providing the information duties imposed by the old Directive.92 This administrative remedy must be problematized, taking into account how English law usually addresses problems of this sort.
90 See Minhas v Imperial Travel Ltd [2003] C.L.Y. 2043, this case reports on a travel agent who was held liable for providing information that did not correspond to the truth. The agent thus had to pay damages to the consumers. On the same topic, see also Jackson v Horizon Holidays Ltd [1975] 1 W.L.R. 1468. This older case is about deceiving information. D., who provided the information, was held liable for the disappointment of P., the buyer. These cases have a different nature from the actual pre-contractual duty for they report to tort of deceit.
91 Also repatriation of the consumer in case of insolvency under sub c. 92 See Regulation 7(3).
It might seem unusual to apply a public law remedy to cases of this nature. However, the distinction between what is private and what is public law can be somewhat dubious. First, because it is a constitutional right of individuals to get compensated when things go wrong.93 Furthermore, even interpersonal relationships often derive from the exercise of a public power. Indeed, there has been a trend to constitutionalize private law, and thus directly apply constitutional rights in a private law context.94 This might explain the application of a public law remedy to this situation.
However, the question still remains: why not apply a private law remedy such as contractual liability, like we concluded for the Portuguese case? There is a lot of controversy regarding damages under English law. The logic behind this approach is the fact that awarding someone with damages for breach of a contract is not a remedy in itself, but rather a means for a remedy.95 This is because what English law intends to shield are the rights of the contracting party, so a right to a specific performance seems to be a preferential course of action. When one enters a contract, they acquire a right to the performance, as stated in Alley v Deschamps96 so we are focusing on the contract itself, rather than in compensation. Damages seem to be an inefficient way of achieving this goal, for they simply provide a compensation in case of breach, as it was discussed in Mappouras v Waldrons97 and thus they are not a suitable approach to the point of concluding the contract in the first place. Also, the process of being awarded damages under English law is not a simple one. For instance, in Clarke v Buckle Mellows98 the court decided not to award damages to the plaintiff after he failed to prove he had actually had a pecuniary loss due to the breach of the contract. There are limitations under English law in awarding damages, and the English court often finds it difficult to justify this remedy. The idea is that the plaintiff will be awarded damages when there is an exact amount of money he or she lost and it was undoubtedly due to the breach. This inevitably leaves out the subjective loss one might have had. There are cases that illustrate precisely this limitation, for instance Ruxley Electronics and Construction Ltd v Forsyth99 and Farley v Skinner.100 The point here is to explain the statement that there are some difficulties experienced by the English court when awarding damages.101
Moreover, the recoverability is limited by what the party could have foreseen and shall not overcome that value, as the leading case on this matter Hadley v Baxendale102 states. This is to
93 See JCP Goldberg... page 524.
94 See Dorota Leczykiewicz and Stephen Weatherill...page 204. 95 See David Pearce and Roger Halson... pp. 1 and 2.
96 Alley v. Deschamps [1806] 13 Ves. Jr. 225. 97 Mappouras v Waldrons [2002] EWCA Civ 842. 98 Clarke v Buckle Mellows [2005] EWCA Civ 1611
99 Ruxley Electronics and Construction Ltd v Forsyth [1995] UKHL 8 100 Farley v Skinner [2001] UKHL 49
101 For further explanation, see Stephanie Mullen, op. cit. 102 Hadley v Baxendale [1854] EWHC J70
demonstrate that, even though the English court sometimes prescribes damages, there are still limitations in the quantum, which is coherent with what has been argued above.
This helps understanding the reason why the English legislator opted to have in force an administrative remedy for not providing information duties. England does not seem eager to have private law remedies such as damages and contractual liability for these don't fulfill the purpose of remedies in the first place – to get the performance of the contract. This also backs our statement that England demonstrates reluctance in having information duties. This characteristic of the English system will be specifically discussed below.
3.2.3. The (in)existence of culpa in contrahendo
As it was exposed, there are several information duties that must be fulfilled under the regulations, similarly to the Portuguese case.103 The interesting aspect (one of them, at least) is the way how English law usually copes with the pre-contractual stage.104
That being stated, the regulations do not seem to be consistent with the overall English system in this regard, for it is required to provide some information in the pre-contractual stage (as previously referred). It has been argued that the English system is not as different as one might think regarding the pre-contractual stage.105 Hugh Beale argues that there is essential background information, through specific instruments106 under English law. Hence, the concept is different but it can lead to similar results. This is to state that the systems are not as different as they would come across at first glance, although the different approaches are undeniable. For this reason, the author lists the Package Travel Directive and the Distance Selling Directive107 as exceptions to the English rule, since these instruments regulate the pre-contractual information duties explicitly. Beale highlights that the differentiation factor lies in the fact that these apply to Business to Consumer108 thus their impact is somewhat reduced in an overall picture of the system.109 The topicality of this statement can be questioned, since this argument by Beale was written in 2008. Thus, the question to be answered is if in 2017 this line of thought is still valid. Looking at the Directives in force in the Union that were implemented in England, this still seems to be a current argument. Take the Directive on Consumers Rights for example. Its implementation under English law was made
103 See supra 2.2. 104 See supra 1.2.1.
105 Hugh Beale... pp. 42 to 50.
106 Ibid., mistake (page 44 to 47), indirect duties of disclosure (pages 48 and 49).
107 Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts.
108 From now on, “B2C”. 109 Hugh Beale, op. cit., page 43.
through The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.110 This regulation clearly attributes relevance to the pre-contractual stage, imposing
information duties before the conclusion of the contract in its articles 9 to 11. Furthermore, the breach of an information requirement allows the cancellation to consumers, as stated in article 31 of the part 3. Another example would be the new Package Travel Directive. Although it was not yet implemented by England, it does prescribe information duties and regulates the pre-contractual stage. Hence, this statement does not seem to be outdated and is still applicable currently to the consumer acquis. In fact, there are authors who argue that the relevance of good faith in
negotiations, under English law, is exactly the same as in Civil Law countries, when we are in the field of consumer contracts.111
It's precisely in a B2C scenario that the regulations gain relevance for there is an imbalance between the parties. The idea is to “make sure that you know exactly what you're getting when you book a holiday, and to ensure that you aren't unfairly treated by a tour operator adding charges or making changes to your holiday”112. Given this context it would be hard to argue against the pre-contractual information duties in this frame. Therefore, it will not be problematic to demand information duties in the pre-contractual stage under English law because we are in the field of consumer law and the idea is to strike a balance between the contracting parties.
Conceptually, the professional seller has a privileged position in a contract with a consumer, the latter perceived as the weak party in this contractual relationship. This can be explained by many factors, namely the access to information, overall knowledge and bargaining power.113 To prevent this imbalance, there are regulations that aim at providing protection to consumers throughout the European Union. This justifies the further requirements for English law that would not otherwise be in place.
3.3. The national implementations evaluated
3.3.1. How does the implementation of the Directive fulfill its aims?
Both Member States implemented the Directive through a consumer protective regime. The implementation of pre-contractual information duties is a key aspect that enables the fulfillment of
110 Available at http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
111 See Stathis Banakas... page 4. However this statement is, in my view, too far-reaching for the approach still has a different background in general contract law.
112 Sarah Clark... last paragraph.
113 See Alexander Belohlávek... p. 152. See also CJEU Joined Cases C-240/98 to C-244/98, Océano [2000] para 25 – this case is about unfair terms in consumer contracts, on paragraph 25 there is the reasoning that justifies
