The expiry of bonds and the reactivation of travel

Recently, on June 21 of this year, the key date established in article number 36.4. of Royal Decree-Law 11/2020, of March 31, was met, which adopts complementary urgent measures in the social and economic spheres to deal with COVID-19, for the return, by the organizers or, where appropriate, the retailers, of any payment made by customers for package trips that were canceled due to COVID-19 and for whom, as a replacement, a voucher was provided in which reflected the amount due.

During the first months of the pandemic, under the provisions contained in Royal Decree-Law 11/2020, consumers were provided with vouchers whose acceptance was mandatory for them, and it was optional for the organizer and the retailer to deliver them or not. Most companies provided them, saving, at that time, the possible liquidity problems that the reimbursement of trips canceled due to COVID-19 would have caused them. That oxygen balloon that the legislator provided in its day has ended up deflating: the amount reflected in the vouchers must be reimbursed at the request of the consumer.

Thus, as of the date indicated above, having “after the period of validity of the voucher” and this not having been used by applying its amount for another trip,”the consumer may request a full refund of any payment made.”

Having said that, what are the options available to organizers or, if applicable, retailers in the face of this possibility that the regulations currently grant consumers to request a refund of the amounts due?

First of all, before proceeding with the refunds, we have two options that are worth trying because they would free the person responsible for the reimbursement to proceed with the disbursement of economic amounts. The first would be to offer, from now on, to customers holding the vouchers alternative trips to which the amount of the same can be applied and the second is to obtain an agreement to extend the voucher between the parties. Both options allow, with the consent of the clients, that there are no disbursements that could lead companies to possible liquidity problems, either by taking out a new trip or by deferring payment. In none of these cases should we forget, of course, the imperative need for this agreement to be formalized between the parties, embodying the content of the agreement in a document.

If none of the proposed options is accepted by the consumer, the amounts due to the customers must be reimbursed, either by the agency itself or by the providers of the travel services that make up the package trip, since article number 161 of Royal Legislative Decree 1/2007, of November 16, approving the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws establishes joint liability between organizers and retailers regardless of who you must run the services.

If it is impossible to disburse 100% of the corresponding amount reflected in the bond at the current time, since it is clear that there has been an avalanche of requests since June 21 of this year, another option is to offer the customer a payment schedule in which the fractional amount is established and the date on which each of the amounts must be paid. This payment schedule must be well documented with the sole intention of, in the face of possible future claims, to be able to prove that the customer was aware of and accepted the fractional payment proposed by the organizer or retailer.

Having said the above, if the organizer or retailer does not reach the desired agreement with the customers, unable to pay all the amounts reflected in the voucher and whose reimbursement has been requested or if any of the payments established in the calendar are not fulfilled, the customer will almost certainly file a claim that will materialize directly (telephone call, email, etc.) or in the form of a Complaints Form to which, yes or yes, depending on the Community Autonomous in which the obligated are located, it will be necessary to respond within a certain period of time and, in any case, never in a period of time longer than one month. This Complaints Form may be submitted by the consumer to other bodies such as Consumer and User Organizations (for example, OCU, FACUA, etc.) or to Municipal Consumer Information Offices (OMIC). Similarly, their request must be answered, taking into account that the case may be referred ex officio to the competent authority for consumption or tourism, which may initiate an inspection procedure in order to know the specific circumstances and determine if the employer's action has been adequate.

If the consumer does not receive an extrajudicial response or if the reply offered by the organizer or, where appropriate, the retailer, does not satisfy or meet their requirements, the consumer may go (or may do so directly avoiding extrajudicial channels) to the judicial process for the defense of their interests, the amount of the amount claimed being very important, at this point, taking into account that, always, if this amount is greater than €2,000, the defense with the assistance of a lawyer and attorney will be mandatory.

From TOURISM & LAW we make ourselves available to all entrepreneurs who carry out their activities in the sector so that, after analyzing their situation and with experience and a legal approach, we can provide each of them with optimal solutions for each case with the sole objective of minimizing risks and seeking to ensure the survival of companies.

Inés Aguinaliu (T&L Attorney)