The Right of Withdrawal in Combined Travel Contracts

Since the entry into force of Royal Decree-Law 23/2018, of December 21, which transposes the European Package Travel Directive and modifies the Spanish regulations for the protection of consumers and users - which in its Title IV regulates Package Travel - there have been numerous publications that have referred to”the main news” which has brought with it the new regulations. Well, as you may be aware, one of those that we usually get talked about is the The consumer, the traveler, has the right of withdrawal when booking a package trip outside the establishment within fourteen days, without the need for justification.A priori, This statement, which follows the literal tenor of the law, without introducing any nuance in this regard, may concern the travel agent, since the first association made by the businessman is the contracting of trips electronically, that is, when the customer does not formalize the contract in the agent's own office. However, the general law on the protection of consumers and users (RDL 1/2007, of November 16), defines and regulates both contracts concluded outside the commercial establishment and remote contracts and gives content also to the right of withdrawal, whose study will be necessary to understand the scope and implications of this traveler's right. Thus, the Right of withdrawal of a contract is the right of the consumer and user to rescind the concluded contract, thus notifying the other contracting party within the period established for the exercise of that right (14 days, in this case) without the need to justify their decision and without penalty of any kind. It is important to note that clauses that impose a penalty on the consumer for exercising their right of withdrawal will be considered null and void. The customer will have the right to withdraw from the contract in the cases provided by law or regulation and when this is recognized in the offer, promotion, advertising or in the contract itself. As for the 14-day period for the exercise of the right, this will be calculated from the date of conclusion of the travel contract. Secondly, as we have mentioned, we must distinguish between distance contracts and contracts outside the establishment (Title III of Royal Legislative Decree 1/2007, of November 16), between businessmen and consumers and users. contracts concluded remotely will be those that are formalized within the framework of an organized system for the sale or provision of remote services, without the simultaneous physical presence of the entrepreneur and the consumer and user, and in which only one or more remote communication techniques (postal mail, internet, telephone or fax) have been used up to the time of the conclusion of the contract and at the conclusion of the contract itself. In the light of this description, we can see that today many of the sales of travel services by agencies are made on the internet, via e-mail, or by telephone, so that the conclusion of these contracts would be considered at a distance, and not outside the commercial establishment. Consequently, the customer's right of withdrawal will only operate when booking package trips when they take place i) with the simultaneous physical presence of the agent and the customer, in a place other than the businessman's commercial establishment, that is, the travel agency. This assumption may occur if, for example, the hiring takes place at a specialized fair. Likewise, ii) those contracts that are concluded at the travel agency or through the use of any means of remote communication (those mentioned above) after they have existed personal and individual contact with the client outside the agency's premises, with the simultaneous presence of both. This scenario would be similar to the first, since an offer for a package trip to be executed by the client was specified in a space outside the agency (and not electronically) and the client accepted and formalized the contract at the agency itself. Finally, contracts concluded outside the establishment will be considered those that are concluded during an excursion organized by the businessman in order to promote and sell products or services to the consumer and user. Delimited the cases in which the customer may exercise the right of withdrawal, without justification, we see that these are reduced within commercial practice. However, those agents who carry out this type of contract as part of their activity must establish in their offer and pre-contractual information and the package travel contract a clause that includes the customer's right to withdraw within 14 days.

Júlia Petit (T&L Attorney)