legal framework of travel contracts

European Master in Tourism Management (EMTM)/ Master en Dirección y Planificación del Turismo (MDPT)

CONTRACTUAL ARRANGEMENTS IN THE MANAGEMENT OF TOURIST PRODUCTS

I. Legislative instruments

0 International Conventions. The top in the regulatory hierarchy, whether

0 Ratified by EU institutions and Member States (eg. Montreal Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999);

0 Incorporated into the EU law by virtue of regulation (eg. Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009, on the liability of carriers of passengers by sea in the event of accidents incorporated the Athens Convention relating to the Carriage of Passangers and their Luggage by Sea 1974, as amended by the Protocol of 2002); or

0 Ratified by only a few Member States (e.g. the Paris Convention on the Liability of Hotel-Keepers Concerning the Property of their Guests adopted by the Council of Europe in 1962; or the UNIDROIT International Convention on travel contract 1976)

November 2013

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Lecture 1. Legal Framework of Travel Contracts. The Regulated Package TravelDr. Josep Maria Bech Serrat. University of Girona. © 2013-2014

0 EU Regulations. Secondary EU law as directly applicable adopted to protect the interest of

transport passengers

0 Passenger’s Rights Regulation 261/2004/EC (now under revision)

0 Railway Passenger’s Regulation 1371/2007/EC

0 Sea Passenger’s Rights Regulation 392/2009/EC

0 Boat Passenger’s Rights Regulation 1177/2010/EC

0 Bus Passenger’s Rights Regulations 181/2011/EC

0 EU Directives to be transposed/incorporated into national law by Member States, based on

0 A minimum harmonisation (eg. the Unfair Contract Terms Directive, the Package Travel Directive); or

0 A maximum/full harmonisation (eg. the Unfair Commercial Practices Directive, the Consumer Rights Directive)

0 The achievement of a high level of consumer protection: the proposal for a new Package Travel Directive

presented on 9 July 2013 (Art 1).

0 Who is the EU legislation on travel law aimed at protecting?

0 Travel law legislation: consumers (Art 2 point 4 PTD), travellers (Art 3 point 6 of the proposal for a new PTD), transport passengers (eg. Air Transport Rights Reg. 261/2004), hotel’s guests (eg. Paris Convention), tourists (Art 3 of the third Draft WTO Convention on the Protection of Tourists and Tourism Service Providers)

0 Travel law as one field of EU law connected to providing a protection which is not limited to those consumers as defined in Art 2 Para 1 of Consumer Rights Directive

0 Business travellers. However, business travellers were included in the proposal for a new PTD ‘insofar as they do not travel on the basis of a framework contract with a trader specializing in the arrangement of business travel’.

0 Any person who is seeking to conclude (contracting party) or is entitled to travel on the basis of a contract concluded within the scope of the legislation (beneficiary)

0 Consumers and horizontal EU Directives (eg. Unfair Contract Terms Directive, Consumer Rights Directive)

0 Art 2 Para 1 CRD: “[f]or the purposes of this Directive, consumer means any natural person who is acting for purposes which are outsite his trade, business, craft or profession”

0 The fragmented character of the current legal instruments

0 The idea of an ‘optional’ contract law for Europe

II. The regulated package travel

0 The concept of package travel

Article 2

For the purposes of this Directive:

1. 'package' means the pre-arranged combination of not fewer than two of the following when sold

or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:

(a) transport;

(b) accommodation;

(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package.

The separate billing of various components of the same package shall not absolve the organizer or retailer from the obligations under this Directive;

A package travel must have at least five ingredients:

1. The package must comprise a combination of two out of the three listed qualifying components. The meaning of

0 ‘other tourist services’

0 ‘not ancillary to transport or accommodation’ and

0 ‘accounting for a significant proportion of the package’.

2. The combination must be pre-arranged, but specifications of the consumer are also possible (ECJ C-400/00 Club Tour Case).

3. The combination must be sold or offered for sale at an inclusive price. Inclusive excursions, pre-bookable excursions, local excursions and independent excursions. The separate billing of various components shall not absolve the organiser or retailer from the obligations under the PTD.

4. The arrangements must extend over a period exceeding 24 hours, or involve overnight accommodation. For example, the exclusion of a day-excursion for retired people.

5. The package must be sold or offered for sale in a European member state.

0 Online travel services

0 Online package holidays (Art 3 Para 2 lit (b)(v) of the proposal) to be regulated by the new PTD:

A combination of at least two different travel services for the purpose of the same trip or holiday…+

… purchased from separate traders through linked online booking processes… +

… where the traveller's name or particulars needed to conclude a booking transaction are transferred between the traders at the latest when the booking of the first service is confirmed; and

+ … the traveller perceives that there is a responsible for the whole package (as organiser).

0 Online assisted travel arrangements to be regulated by some provisions of the new PTD (Art 3 Para 5 lit (b)):

A combination of at least two different types of travel services for the purpose of the same trip or holiday […] resulting in the conclusion of separate contracts with the individual travel service providers, if a retailer facilitates the combination:

+(b) through the procurement of additional travel services from another trader in a targeted manner through linked online booking processes at the latest when the booking of the first service is confirmed.