What's new in Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel services

To date, and according to current regulations, travel agents are companies - individuals and legal entities - that, in possession of the corresponding title-license, are dedicated, professionally and commercially, exclusively to the exercise of mediation activities and/or organization of tourist services, and may use their own means in providing them. The legal status and the name of travel agency is reserved exclusively to the above-mentioned companies. The terms “trip” or “trips” can only be used, as all or part of the title or subtitle that labels their activities, by those who have the legal status of a travel agency. In this way, they are the object or purpose of travel agencies, among others, the organization and sale of so-called combined trips, defined in article 1 of Law 21/1995, of July 6, regulating Combined Travel, or regulations that replace it (today RD 1/20017), which were classified as i) Wholesale agencies are those that design, they develop and organize all kinds of services for offer to retail agencies, and cannot offer their products directly to the user or consumer. ii) retail agencies those that either market the product of the wholesale agencies, selling it directly to the user or consumer, or they design, develop, organize and/or sell all kinds of services directly to the user, unable to offer their products to other agencies, and iii) wholesaler-retail agencies those that can combine the activities mentioned in the two previous sections. Until now, what was described above was, as we have said, generally applicable to all Autonomous Communities, with their peculiarities, although with the enactment of the Freedom of Provision of Services Directive, Directive 2006/123, entitled “Freedom of establishment of providers”, and Combined Travel Directive 2015/2302, regulatory amendment will be carried out. The new directive implies the establishment of an appropriate balance between a high level of protection for consumers and users Europeans and the competitiveness of entrepreneurs, as well as the consolidation of an internal market aimed at strengthening legal certainty, eliminating existing disparities in European legislation on package travel contracts that create significant obstacles in the internal market. Thus, art. 163 RD 1/2007 is amended, establishing a guarantee of contractual liability. In this way, the organizers and retailers of package trips have the obligation to permanently constitute and maintain a guarantee in the terms to be determined by the competent Tourism Administration, to respond in general terms to the fulfillment of the obligations deriving from the provision of their services to the contracting parties of a package trip and, especially, in the event of insolvency, for the effective reimbursement of all payments made by travelers to the extent that the corresponding services have not been performed and, if transportation is included, of their effective repatriation. Thus, as soon as it becomes apparent that the execution of the package trip is affected by the lack of liquidity of the organizers or retailers, to the extent that the trip is not executed or is partially executed or the service providers require travelers to pay for them, the traveler will be able to easily access guaranteed protection, without excessive procedures, without undue delay and free of charge. Following the publication of Directive (EU) 2015/2302 by the European Parliament and the Council of November 25, 2015 on package travel and related travel services, the Secretary of State for Tourism has drafted a draft containing regulations adapted to the Directive that has been transferred to the different autonomous regions. These regulations must be approved no later than January 1, 2018, coming into force as of July 1, 2018. In this way, we can indicate that the “necessary” objective of the draft law is to modify the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws, in order to incorporate Directive (EU) 2015/2302 into domestic law to provide greater coverage and protection to the consumer, which is aimed at: - Strengthening legal security, both for consumers and businesses.- To contribute to the elimination of existing disparities in European legislation in contracts concluded between companies and consumers that create significant obstacles in the internal market.- Raise the level of protection of consumer and user rights, in relation to, among others, the following aspects:

• The scope of application of the standard is extended, covering different forms of package travel and linked travel services.
• The information that needs to be provided to travelers is expanded.
• Some of the rights of consumers and users are being regulated, to a different extent, with regard to the formalization of contracts and the requirement of a guarantee in the event of insolvency.
• A liability regime is established that is stricter in the case of package trips and another system for linked travel services.
• Mutual recognition of the insolvency protection granted under the legislation of another member State is contemplated.

In order to adapt the definition of package travel to the evolution that the market has experienced in recent years, the law expands the scope of this concept based on objective criteria that for the most part refer to the way in which services are presented or purchased, making room for many travel products that were legally undefined or were not clearly covered by the previous regulation. In particular, along with traditional pre-established package trips, it also includes the combination of travel services at the request of the traveler or according to the selection made by the traveler, regardless of whether the reservation is made in person or online. On the other hand, the scope of application of the law also includes linked travel services, in which the role played by businessmen is to facilitate travelers, in person or online, to contract travel services, leading them to conclude contracts with different providers, including through connected booking processes. In order to allow To better differentiate “package trips” from “linked travel services” the law establishes that whenever data referring to the name, payment details and email address of the traveler are transferred between service providers and a second contract is concluded within 24 hours after the first service was confirmed in your reservation, it must be considered as a “package trip” Finally, organizers and retailers will have to provide a guarantee to respond generally to compliance with the obligations deriving from the provision of their services and especially for the reimbursement of advance payments and the repatriation of travelers in the event of their insolvency. The law maintains discretion for the competent authorities of the Autonomous Communities when specifying the form to be taken by this guarantee, which may be constituted by creating a guarantee fund, taking out insurance, a guarantee or other financial guarantee. If it is impossible to guarantee the return of the traveler as agreed in the contract due to inevitable and extraordinary circumstances, the organizer or, where appropriate, the retailer will assume the cost of accommodation as necessary, if possible of an equivalent category, for a period not exceeding three nights per traveler. In short, the new law implies a reinforcement of pre-contractual information (Article 153) to the traveler, as well as new information obligations to be assumed by businessmen, specifically referring to the language or languages in which the activities included in the package trip will be carried out ( Article 153.1.a) .7º), to the applicable provisions on insolvency protection (Article 164), to the possibility of taking out insurance to cover the costs of cancellation by the traveler or assistance, including repatriation costs, in the event of an accident or illness (Article 153.1.h), as well as the adaptation of the trip to the needs of people with reduced mobility (Article 153.1.a) .8ª). Also, with regard to information on fees, expenses and other additional costs, it is established that in the event that said information is not provided before the conclusion of the contract, the traveler will not have to bear such fees, expenses or costs (Article 154.2). The increased requirement for consumer information about their rights and obligations is also reflected in the regulation of the content and form of the package travel contract as well as in the documents to be delivered before the start of the trip (Article 155).

José Luis Valencia (T&L Attorney)