Knowledge Platform

Does the PTD apply to the multi-modal Transport Ecosystem?

Whilst at face value it appears that the PTD does not apply to multi-modal transport – prima facie there being only one travel service provided (i.e. transport), the above analysis demonstrates how the national courts have sought to expand the scope of the current definition, in order to enhance consumer protection.

Moreover, it is important to note that the definition of ‘package’ continues to evolve rapidly, with a new Directive presently due to come into force in late 2017.

The new Directive has been developed in direct response to the way in which our holiday arrangements are now made – in particular, with the surge in the use of the internet and online travel agencies (OTAs) to make such arrangements. Discussions of what should and should not be caught by the PTD have been driven by ‘consumer perception’ of what is a package – rather than applying the strict legalistic definition outlined above [13]. 

As such, the new Directive will not only capture the more traditional package type arrangements – i.e. the pre-arranged combination for example of say a flight and accommodation for an inclusive price, under one single contract, but will also apply irrespective of whether single contracts are concluded where:

 Two or more ‘travel services’ [14] are purchased from a single point of sale and sold at an inclusive or ‘total’ price; and

 Where purchased from separate traders through linked online booking processes where the traveller's name, payment details and e-mail address are transmitted from the trader with whom the first contract is concluded to another trader or traders and a contract with the latter trader or traders is concluded not more than 24 hours after the confirmation of the first travel service.

Passengers making linked online travel arrangements, which do not constitute packages – for example where in a targeted manner (for example a targeted web link), the consumer goes on to book additional travel service from another trader not more than 24 hours after the confirmation of the first travel service will also receive the benefit of certain insolvency protections under the new PTD (financial protection is discussed further below).

Many of the main information requirements and liability provisions of the current PTD remain unchanged. However, the level of consumer protection is enhanced. By way of example only, the consumer will be given increased opportunity to cancel the package prior to departure and at any time – upon payment of a ‘reasonable’ fee and the situations in which the consumer may transfer the booking will also be expanded.

The multi-modal transport ecosystems will facilitate the purchase of a single ticket, for a single ‘inclusive’ or ‘total’ price, under a single set of terms and conditions, from a single source, which will enable seamless travel across Europe utilising multiple modes of transport provided by a number of different carriers – across modes. Whilst there is therefore only one travel service present – from all other angles, the arrangement looks like a packaged product, being a pre-arranged combination (albeit at the request of the passenger), at a single points of sale, for a total price.

Will the passenger therefore perceive that he is actually buying a packaged arrangement?

As the use of multi-modal travel becomes more popular amongst consumers, the need to enhance the level of protection they are afforded will only increase. Furthermore, as the model develops it will become ever more likely – no matter what platform is used to offer for sale a multi-modal ticket – that it will be combined with accommodation for a complete seamless travel experience. In that case, there is no doubt at all that the PTD will bite.

In any event, from the viewpoint of securing contractual certainty and creating transparency for the consumer, when considering the fact that there are a number of different and potentially competing liability and passenger rights regimes that a single contract of carriage may be subject to if a single passenger rights regime cannot be adopted, a package travel like liability regime may be the answer. 

The key question to consider then is who will be considered the ‘organiser’ if multi-modal travel is to fall within the scope of the PTD. Much will depend on the interface created to facilitate the ticketing of the multi-modal journey.

Organiser is defined in the new PTD as one “who combines and sells or offers for sale packages…either directly…” and will remain primarily liable to the consumer for the proper performance of the contract; including for pre/post contractual alterations to the package and for any loss/damage caused by the improper performance of the contract, even where the breach/negligence is in fact on the part of a third party supplier.

The new PTD also makes provision for Member States to hold the ‘retailer’ jointly and severally liable for the performance of the package.

Will multi-modal tickets only be available via a consortium owned website – if so, will this online presence take the form of an online travel agency (an OTA)? OTA as the organiser?

Alternatively, will the interface be made available as a ‘bolt-on’ to existing multi-modal journey planners? [15] Journey planner is the organiser? Or retailer? Or both?

Will the tickets be sold through travel agents? In which case, will the arrangement be akin to dynamic packaging? [16] Travel agent is the organiser? Or retailer? Or both?

Is bringing multi-modal travel under the remit of the new PTD the answer? 

[13] In the English case of CAA v ABTA the court indicated that whilst the test of what is and is not a package is not subjective; the fact that the consumer thought he was purchasing a package was not determinative, but "may be a powerful evidential pointer to the true nature of the transaction." 

[14] ‘Travel services’ include accommodation, carriage of passengers, rental of cars and other tourist services not intrinsically part another travel service already listed.

[15] There a number of existing national multi-modal journey planners, See 

[16] ‘Dynamic packaging’: a method used to enable customers to build their own package, combining a number of different travel services.