Intrusion in the activity of a Travel Agency

In this article I will deal with a very current topic, - not because it has emerged now in these times - but because of these more difficult circumstances of loss of employment due to the measures that have had to be taken to combat COVID-19, and that there is no choice but to try to get ahead with what has now been called an enterprise for some time. Added to this is the fact that the lockdown due to Covid-19 has given a great boost to the use of online media that facilitate tourist mediation to a greater extent, which can lead to the practice of travel agents for those who are not.

We must not lose sight of the fact that travel agency activity is regulated, so entrepreneurship in the travel agency sector without complying with the mandatory requirements involves carrying out professional intrusive behavior.

Thus, this practice involves a high risk in the market because it has consequences to the detriment of, on the one hand, consumer rights and guarantees, on the other, of competition in the market, which is described as unfair to legal agencies; and, finally, it represents a violation of public order in terms of not complying with the legal obligations established in the legal regulations regarding the exclusivity that travel agencies hold in the organization and sale of package trips.

It is true that the need for entrepreneurship described above is reflected in the great temptation deeply rooted in the mischievous idiosyncrasy of our country to carry out, in this case, the activity of a travel agency for those who are not legally registered in the corresponding Registries existing for this purpose in each of the autonomous communities, nor, of course, complying with the rest of the obligations that honest travel agents must assume by law, such as mandatory Civil Liability insurance (in almost all communities), nor to have the guarantees against insolvency in favor of consumers, nor to tax in accordance with the corresponding VAT regime, etc... I will not continue.

Failure to comply with these obligations places the consumer first and foremost in a situation of obvious risk when contracting without due guarantees. Then, this non-compliance with respect to travel agencies means that they act in a situation of unfair competition, and finally, the competent tourism administration forces them to carry out inspection, instructing and sanctioning work that translates into an investment of resources in the investigation and prosecution of this type of intrusive activity, and can allocate these resources to other types of actions, such as promoting domestic tourism.

The damage caused to the market by this type of activity in our country is enormous.

In short, we are talking about a sector whose services are generally aimed at end consumers of combined trips with destinations, the vast majority of which are abroad, which, with all evidence, must be provided with the greatest guarantees, and of course with the professionalism of the agents who are recognized as such with their public registration in the tourism records of each community.

In our country, the regulatory regulation of travel agency activity is delegated to each of the autonomous communities that have issued the corresponding legislation, which in turn has been modified to adapt to European regulations, and its transposition into national regulations.

As you know, there are 17 autonomous communities, each of them with 17 regulations with the rank of law that regulates the organization of tourism in its territory (with some exception), and with 17 Regulations that regulate in depth the activity of a travel agency. I am not going to analyze and explain the 34 rules to you, but only in a general and common way, and I will try not to do so in a very legal way.

I have chosen, by way of example, basically the regulations of the Community of Madrid, but it could well be those of any other community, which in general are very similar in this matter of professional intrusiveness.

I begin by stating that tourism companies are defined as all those that, at a price and on a professional and regular basis, either permanently or temporarily, provide services in the field of tourism. Tourism companies include brokerage companies, to which travel agencies belong.

And what are travel agencies? Therefore, companies that, having submitted a responsible declaration to the General Directorate competent in the field of tourism, are professionally and commercially dedicated to the exercise of mediation activities and/or organization of tourist services, being able to use their own means to provide them, and must be in possession of the corresponding license-certificate, that is, in Madrid the CICMA (Identification Code of the Community of Madrid, for example in the Balearic Islands it is the CIBAL, in Castilla y León it is the CICL, etc.)

In addition, I must remember that the mediation and organization of tourist services considered as package trips are the exclusive competence of travel agencies.

That said, and consequently, the offer, performance or advertising by any means of disseminating the commercial activities of travel agencies without being in possession of the corresponding title-license, will be administratively sanctioned, and the corresponding file is initiated ex officio or at the request of a party.

Consequently, offering, providing services and carrying out activities are considered to be very serious offences, without having submitted the responsible declaration, required by tourist regulations, establishing the penalty of a fine in the amount of between 30,001 and 300,000 euros.

On the other hand, we cannot fail to refer to new technologies, and the online or “online” sale of package trips, - and as a result of carrying out the activity of a travel agency -, that in addition to all the regulations and obligations indicated above, it must also comply with the specific regulations of Law 34/2002, of July 11, on information society services and electronic commerce.

Finally, what actions can we take if we detect the actions of a professional intruder in our sector?

The primary issue is to collect all kinds of evidence about the intruder's actions in the travel agency market, such as obtaining the advertising they use (brochures, offers, promotions, advertising posters, etc.), as well as paper prints of offers published on the internet, for example.

The question is to correctly articulate and substantiate the possible complaint to the corresponding authorities, for which I suggest that you go to your trusted law firm so that the complaint is well founded, and that it allows the appropriate administration to initiate the sanctioning case against the intruder.

The actions that can be taken, and to which administration you should contact will depend on each specific situation, hence, my recommendation to go to a lawyer who will handle the matter well, since you can use several channels, such as a complaint to the General Directorate of Tourism in each community where the intruder carries out the activity, or file a complaint with the authorities of each community in the corresponding Competition Defense Service, and/or take the corresponding actions before the civil courts by competition unfair, or even, if it becomes some kind of scam or scam, before the criminal jurisdiction, a choice that will depend on each specific case.

However, in any case, it must be argued and supported by the strongest evidence you can find.

José Luis Valencia (T&L Attorney)