Linked travel services: The importance of good advice

The Bill that amends the Consolidated Text of the General Law for the Defense of Consumers and Users and other complementary laws (Royal Legislative Decree 1/2007, of November 16), will represent, when it has its definitive effects, a substantial change in the regulation of the sale of holiday tourist services both for Travel Agencies and for many other companies that, as a result of the new forms of contracting born of market freedom and new technologies, are accessing a new niche additional market to their own direct sale. Whether this is going to represent a new paradigm or if there really isn't going to be anything new under the sun, only Judgments and practice will give us the answers. But it doesn't hurt that we are debating the general aspects that, as an objective, the Spanish legislator has set itself in order to transpose Directive (EU) 2015/2302 of the European Parliament and the Council, of November 25, 2015, relating to package trips and related travel services. To begin with, and summarizing the “why” of this regulatory change, we can focus on three main linked sources of protection: (I) The European market; (II) the Consumer and; (III) Travel Agencies. Thus, since the so-called Bolkestein regulations and the elimination of administrative obstacles in the sale of services to users under the arm of market liberalization, harmonization was more than necessary in the legislation for the sale of tourist holiday services in Europe, which necessarily involves eliminating disparities that could create obstacles in the European internal market through a uniformity that consolidates mutual recognition between member States of the guarantees that protect against business insolvency consumers and active administrative cooperation between States. This undoubtedly links with greater protection for consumers and users at European level, which crystallizes not only in a greater number of rights for the user of tourist services, but also in greater transparency when it comes to contracting services that were left in a regulatory loophole or limbo since they were not part of regular travel agencies, but came from links to tourist services - hence the name of “linked travel services” - which are “facilitated” - let's also stick with this term of “facilitation” - by companies of the segment of tourism, but not exactly the Travel Agency sector, which are mostly composed of passenger transport services plus accommodation or vice versa, depending on which company “facilitates” their purchase. And, as a third linked element, the Spanish legislator intends to protect travel agencies from the reported intrusiveness that they carried out in defense of their niche market, threatened by new forms of electronic contracting by platforms and tourism companies not expressly dedicated to the sale of services main and/or additional tourists that were not exclusively their own. Whether the elimination of this alleged intrusion through its legalization solves the problem or if it aggravates it, each company in the sector has its own opinion depending on what it has to do with it, which is obvious and, also, understandable. The fact is that the connection of two main tourist services - transport of people, accommodation and rental of vehicles, to summarize - or of a main tourist service plus an additional one - sale of tickets, excursions, for example summarized as well-, that exceeds twenty-five percent of main service and are contracted during a single user visit with a time interval of twenty-four hours or less between the confirmation of the first service and the reservation of the second, will impose on the businessman who facilitates contracts through his website or company, the obligation to inform the customer about the connection and the need to have a guarantee against insolvency, among other obligations. It is not simple, no. In fact, that same link of services and contracts with different tourist providers, provided by an entrepreneur, but once the services are selected before the user accepts payment, or made when the connected online booking processes assume that the consumer's data (including payment data) are passed from that company to the provider of such services, will mean that we are not talking about a “link” but a “combination”, which will be part of the combined trip, only reserved to be offered for sale by travel agencies.It is thus that travel agencies, which will also have the possibility of providing linked travel services, will continue to have the exclusive capacity to offer package trips, while companies that simply link without being a travel agency do not. And this not only expands the possibilities of the agency in terms of providing services without joint liability -the linked travel service does not have that responsibility-, but the liability hole we face will actually be in the free interpretation that each company and agency performs with respect to the services that are expressly excluded from regulation in the new Bill, which, if it does not change from here to its final wording, will leave out the package trip and the service linked to services such as the travel of company -provided that there is a contract that supports the relationship-, accommodations for residential purposes -official language schools, for example-, day trips -without an overnight stay-, free or non-profit trips, the combination of additional services of less than twenty-five percent of the value of the main service, and contracts with suppliers provided by the agency or company with a margin of more than twenty-four hours between the confirmation of the first service and the reservation of the second. That is to say, to know What type of contracts do tourism companies have to accept, they must know in advance, not only the accuracy of their purchasing processes on the web -links, data transmission, optimization of offers, discounts, etc .-, but they must interpret whether or not a block of places can be considered as a reserve for the purpose of temporarily computing a second contract of services, or whether or not an additional service is greater than twenty-five percent of the principal, or if the right of withdrawal applies only to sales outside the establishment or if it also applies to travel services linked to remote contracting -and to know the difference between these two types of contracts, of course-, or if the services of a company that makes connections may be sanctioned by the competent authority in the field of tourism, for example. In short, we can venture that, in short, the phrase so repeated that whoever does not adapt to new technologies in the tourism sector will be left behind, must add a dressing consisting of pointing out that exactly the same thing will be left behind It will happen to that tourism company that good legal advice is not sought, since the issue is very complex and not suitable for non-specialized lawyers.

Fernando de Llano (T&l Attorney)

Article published in the December edition From the monthly newspaper CEHAT