Travel Agencies faced with an ERE of an Airline and their possible breaches, what to do?

It has recently become known that an airline operating in our country has announced that it will close three bases it currently has in the Canary Islands and has confirmed the closure of one more, this one in peninsular territory, by January 2020. This will involve, at the labor level, the dismissal through an ERE of, according to the estimation of the Unión Sindical Obrera union, 512 employees, including pilots and cabin crew, who currently work in these four bases located in Spanish territory. This news, in addition to the strike days called for the month of September, to which is added the information that the company has urged the Spanish unions to call off the strikes planned for that month, has dealt a serious blow to the subjects directly affected and to others actors in the sector who observe the situation with alarming uncertainty and see their day-to-day activities at risk. This is the case, for example, of retail Travel Agencies that organize their clients' trips themselves. How should they proceed in this case? Our first recommendation would be that Travel Agencies do not include, as soon as they become aware of an ERE situation, a scenario of indefinite end, the flights of a certain company in their combined travel packages. But, the reality is that today and since we do not know what the real future of events will be in the coming months and for those packages already organized and sold and whose flights have not yet been reported to be affected, practically all we can do is inform the customer, offer you a good service of constant communication and put us at your disposal. One option that the trip organizer would have at this point would be to communicate the situation to their clients (understanding that this falls within the legal definition of “the organizer is forced to change substantially”) and propose to them a modification of an essential element of the package trip (transport) but should inform the traveler, without delay, of the change and its impact on the price, if any. The latter may accept it or decide to terminate the contract without any penalty with the economic consequences that it could entail for the organizer if he has already paid for other package travel services. In the case of package trips that are about to be organized, what happens if, despite the understanding of a situation, it is unknown how it may affect the company's operations in the near future, a customer insists that he wants a particular flight of that company, for whatever reason, to be part of a trip combined? At this point, it is normal and understandable that the travel agent is faced with the dilemma of losing a sale or making it and facing the consequences in the event that, for whatever reason, that flight fails to take place or, if it becomes effective, it is with defects (delays, cancellations, etc.) for which the Agency must also respond because, according to article number 161 of the Consolidated Text of the General Law for the Defense of Consumers and Users and other complementary regulations, it is established that “package travel organizers and retailers will be jointly and severally liable to the traveler for the correct performance of the travel services included in the contract, regardless of whether these services must be performed by themselves or by other providers.”.Thus, it is understood that we are faced with a complicated situation in which it seems that the only way out, in order not to lose the sale, is to cross our fingers and invoke luck so that it does not “my turn”. Notwithstanding the foregoing and the above-mentioned article, which has caused so many headaches since the entry into force of the Act to the various actors operating in the tourism market, our recommendation, in the event that the client insists on his desire to travel with a company that has a situation that is, let's say complicated, as is the case at hand, is to sign a document called a letter of disclaimer in which the Travel Agency indicates that it has notified the traveler of the situation, that the possible ones have been explained to him consequences of hiring the flight with that company, that the traveler accepts and assumes the risk of a situation that, even if it is not true, is likely to happen and is known to the public and that the passenger exempts the Agency from any type of responsibility in relation to breaches related to the flight, since it has been his express desire to hire it. Roughly speaking, it is certainly complex to consider all possible scenarios in the face of a situation of these characteristics since, taking into account the complicated system of attribution of responsibilities that has occurred since the implementation of the new Law, we must attend to the specific case at all times to study it and search for solutions that entail less economic damage to the Travel Agency. Finally, as a conclusion, point out and remember that, among the main functions of retail Travel Agencies is to inform their clients of everything that may happen with regard to the services that the clients hired them, as recommended by Tourism & Law Abogados document all communications held in this regard to avoid possible claims based on statements of ignorance of the contracting circumstances.

Inés Aguinaliu (T&L Attorney)