542 COMPETITION LAW IN TOURISM a commercial perspective. It limitedly decided that Lufthansa and the other three airlines did not breach Articles 5 and 9 of the Competition Act. 12. CONCLUSION The crucial points that should be underlined as a conclusion to this paper are: (a) IATA was considered as a legitimate party in the proceedings between the airlines and travel agents relative to the PSAA; (b) the PSAA is subject to Malta’s judicial jurisdiction; and (c) travel agents could still proceed with the four cases against the airlines from a commercial contract law perspective, since the airline may be acting in breach of the PSAA agreement. Indeed, it is the opinion of the authors that it is deemed rather commercially unfair on the part of the airlines to ‘abuse’ of their (non-dominant) position, and provide an insignificant commission of 0.1% to the travel agents for ticket sales and ancillary services, when, as a matter of fact, it is a travel agent who must practically take full responsibility of a carriers’ shortcomings in particular delays in flights in package travel. Indeed, travel agents might risk bearing the costs and liability when there are particular airline delays when selling packages. This has been experienced through Maltese case law11, when due to a delay in an Air Malta plc flight, the plaintiffs missed the departure of the cruise liner they were meant to board from the Port of Dover (United Kingdom) and had to travel, the next day, to Germany, to board the ship therefrom. The Civil Court of Appeal ruled that the travel agent was responsible for the missed cruise liner departure and consequently had to bear the costs of such a mishap. The Court of Appeal, apart from quoting provisions from the Law of Obligations found in the Civil Code12, further quoted Article 15(1) of the previous Travel Package Regulations (which were adopted verbatim from the previous Travel Package Directive). Today, this same provision has been similarly adopted in Article 12(1) of the Travel Package and Linked Travel Arrangements Regulations13. Once again, this has been transposed 11 Alfred and Josephine Zarb versusMondialTravelAgency (Court Reference 9/2009), Similar Appeals Mifsud Philip versus S. Mifsud & Sons Limited, 10/2009 – Mifsud Carmen versus S. Mifsud & Sons Limited (Court Reference 11/2009) and Buttigieg Rita versus S. Mifsud and Sons Limited (Court Reference: 12/2009) all decided on 30 January 2009, by the Court of Appeal. These cases was amply discussed in the paper “Package Travel and Linked Travel Arrangements Il- Verżjoni ta’ Malta”, in the book The Travel Package Directive, 2019 (ESHTE). 12 Chapter 16 of the Laws of Malta. 13 Subsidiary Legislation 409.19 of the Laws of Malta.
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