The level of harmonisation –Ernst Führich, Professor of Travel Law – University of Applied Sciences Kempten
(1) In my opinion, the greatest problem of the Directive is its approach of full harmonisation. The Directive will forces some Member States to lower their high protection standards. Member States will not have any regulatory freedom anymore! Under the pressure of consumer associations, Art 4 of the Directive changed from its previous minimum standard principle to the new principle of full harmonisation. Unless otherwise provided in the Directive, Member States are barred from introducing any deviating provisions in their national law. As a consequence, Germany has to lower its consumer protection to the sometimes lower standard of the Directive. In Germany, consumers, but also traders, will see some of their legal positions deteriorate.
(2) It is wrong to criticise the nation legislature for this development. The national parliaments are bound to correctly transpose EU law. Nevertheless, I deplore that the transition from minimum to full harmonisation leads to a deliberate reduction of the level of traveller protection in Member States. Should provisions of the full harmonisation Directive be sufficient to erode national standards that are firmly established?
(3) In my opinion, one should rather pay attention to the principle of subsidiarity underlying the EU Treaty of Lisbon (Art. 5 para 3 EUV and Protocol Nr. 2). The Treaty states in clear words that, in the future, the method of full harmonisation of EU consumer protection should only be used if there is a significant advantage over the measures at national level. I doubt that this is the case with respect to the Package Travel Directive. It is questionable whether there exists a common European market for package travel products in the first place. How many German tourists book digitally or locally their package holiday in Spain with an English or French organiser? Almost nobody!