International Journal of Tourism, Travel and Hospitality Law Abu Dhabi | Estoril | Milan | Palma | Parma | Porto Alegre | Rende Sassari | Salamanca | Travna | Zagreb
International Journal of Tourism, Travel and Hospitality Law
ISSN 2184-8793 ISSNe 2975-9056 All Rights Reserved. No part of this journal may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher. A written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. This work is published for general guidance only and is not intended as a substitute for professional advice. While every precaution has been taken in the preparation of the text, the publishers and authors can accept no responsibility for the consequences of any errors, however caused. This edition was published in 2023 by ESHTE, alongside other universities and institutions And
International Journal of Tourism, Travel and Hospitality Law (IJTTHL) Founders: Carlos Torres, ESHTE (Portugal), Chiara Tincani, University of Verona (Italy), Claudia Lima Marques, Federal University of Rio Grande do Sul (Brazil), Francesco Morandi, University of Sassari (Italy), Francesco Torchia, University of Calabria (Italy), Silvia Feliu, University of the Balearic Islands (Spain), Monika Jurkova University of Trnava (Slovakia), Tatjana Josipovic, University of Zagreb (Croatia), and Vincenzo Franceschelli, University of Milano-Bicocca (Italy). Editor in chief and publisher: Carlos Torres, ESHTE (Portugal). Editors: Claudia Lima Marques, University of Rio Grande do Sul (Brazil), Chiara Tincani, University of Verona (Italy) Francesco Morandi, University of Sassari (Italy), Francesco Torchia, University of Calabria (Italy), Francisca Ramón Fernández, Valencia Polytechnic University (Spain) Michael Wukoschitz, President Emeritus of International Forum of Travel and Tourism Advocates (Austria), Marie Jull Sørensen, Aalborg Universitet (Denmark), Matija Damjan, University of Ljubljana (Slovenia), Mohamed El Halabi El Kayal, Sorbonne University Abu Dhabi (United Arab Emirates), Monika Jurčová, University of Trnava (Slovakia), Sara d’Urso, University of Milano-Bicocca (Italy), Sarah Prager, Chairman of the Travel and Tourism Lawyers Association (United Kingdom), Silvia Feliu, University of the Balearic Islands (Spain), Stephen Mason, TravelLaw LLP (United Kingdom), Tatjana Josipovic, University of Zagreb (Croatia), Valérie Augros, Avocat a la Cour (France), Vincenzo Franceschelli, University of Milano-Bicocca (Italy), Scientific Committee: Ana Branca Carvalho, IPV-ESTG (Portugal), Andrej Mićović, University of Kragujevac (Serbia), Antonia Paniza, University of the Balearic Islands (Spain), Apostolos Tassikas, Aristotle University of Thessaloniki (Greece),
Gianfranco Benelli, University of Sassari (Italy), Giorgi Amiranashvili, Ivane Javakhishvili Tbilisi State University (Giorgia), Humberto Gosálbez, University of Cordoba (Spain), Ieva Navickaitė-Sakalauskienė, Mykolas Romeris University (Lithuania), Ilie Dumitru, Bucharest University of Economic Studies (Romania), İlyas Çeliktas, Attorney at Law (Turkey), Inmaculada González Cabrera, University of Las Palmas de Gran Canaria (Spain), Irene Kull, University of Tartu (Estonia), Jaqueline Tanti-Dougall, President of IFTTA (Malta), Javier Melgosa Arcos, University of Salamanca (Spain), Jens Karsten, bxl-law SPRL (Germany), João Vidal, University of Algarve (Portugal), Jolanta Vilkevičiūtė, Aleksandras Stulginskis University (Lithuania), Jonas Tyberg, Konrad Advokater (Sweden), José Ángel Torres Lana, University of the Balearic Islands (Spain), José Eugenio Soriano García, Complutense University of Madrid (Spain), José Tudela Aranda, University of Zaragoza (Spain), Josep Maria Bech Serrat, University of Girona (Spain), Karmen Lutman, University of Ljubljana (Slovenia), Klára Dvořáková, Prague Faculty of Law (Czech Republic), Lana Bubalo, University of Stavanger (Bosnia and Hercegovina), Aránzazu Pérez Moriones, Public University of Navarre (Spain), Ardyllis Soares, University Center of Brasília (Brazil), Athina Kontogianni, European University Cyprus (Greece), Avelino Blasco, University of the Balearic Islands (Spain), Belén Ferrer Tapia, University of the Balearic Islands (Spain), Björn Steinrötter, University of Potsdam (Germany), Cecilia Fresnedo de Aguirre, University of the Republic (Uruguay), Charles Stotler, University of Mississipi (United States), Christophe Lachièze, University Paris 8 (France), Claudia Madrid Martínez, Central University of Venezuela (Venezuela), Danguolé Bubliene, Vilnius University (Lithuania), Dimitris Mylonopoulos, University of West Attica (Greece), Elina Moustaira, National and Kapodistrian University of Athens (Greece), Enrico Gragnoli, University of Parma (Italy), Ernst Führich, Kempten University (Germany), Felio José Bauzá Martorell, University of the Balearic Islands (Spain), Flavia Medina, University of Buenos Aires (Argentina), Francesco Gaspari, Unimarconi (Italy),
fi Editorial Board: Afonso Café, University of Algarve (Portugal), Alejandro Corral Sastre, CEU San Pablo University (Spain), Alessandra Corrado, University of Milano-Bicocca (Italy), Alona Rogale-Homika, Baltic International Academy (Latvia), Andras Salamon, Edutus University Budapest (Hungary), Anne Dolan, University of Limerick (Ireland), Loly Serrano Castro, UNAV (Spain), Lorenzo del Federico, University of Chieti-Pescara (Italy), Marcella Gola, University of Bologna (Italy), Marcilio Toscano Franca-Filho, Federal University of Paraíba (Brazil), Marcos Iglesias Caridad, University of Salamanca (Spain), Maria Ângela Carrascalão, National University of East Timor (East Timor), Marina Gunare, Baltic International Academy (Latvia), Mario Beni, University of São Paulo (Brazil), Mario Folchi, Institute of Air and Space Law Aerohelp (Argentina), Matilde Ceballos Martin, University of Almeria (Spain), Mayte Otero, University of Malaga (Spain), Mikko Laakso, Laki|Lehtonen (Finland), Milana Tomić, Legal Advisor at the Government of Montenegro (Montenegro), Nada Dollani, University of Tirana (Albania), Nancho Nanchev, Legal expert (Bulgaria), Olga Milinchuk, Zhytomyr Polytechnic State University (Ukraine), Olivier Dugardyn, Dugardyn & Partners law rm (Belgium), Patricia Benavides Velasco, University of Malaga (Spain), Péter Staviczky, Attaché responsible for State aid (Hungary), Pilar Juana García Saura, University of Murcia (Spain), Piotr Cybula, University of Physical Education in Krakow (Poland), Raul Perez Guerra, University of Almeria (Spain), Renato Santagata, University of Naples (Italy), Rony Golan, Advocate, Arbitrator & Mediator (Israel), Ruwantissa Abeyratne, Aviation Strategies International (Canada), Snežana Miladinović Drobnič, University of Montenegro (Montenegro), Stepan Keiler, Sigmund Freud PrivatUniversität Wien (Austria), Sverre McSeveny-Aril, Norwegian Bar Association (Norway), Tasman Tam, Hong Kong University (China), Xavier Delpech, Jean Moulin University Lyon 3 (France).
Andrew Charlton, Managing Director of Aviation Advocacy (United States), Anthony Cordato, Lawyer (Australia), António Osório, Lawyer (Cape Verde), Armela Maxhelaku, University of Tirana (Albania), Bertold Bär-Bouyssière, Dentons’ Brussels (Belgium), Camille Dang, Lawyer (France), Caterina del Federico, University of Bologna (Italy), Desislava Hineva, Varna University of Economics (Bulgaria), Dominik Wolski, Katowice School of Economics (Poland), Dov Kolani, IFTTA President Emeritus and Founder (Israel), Duilio Cortassa, Lawyer (Italy), Emmanuelle Hober Zaffran, Aix-Marseille University (France), Evanthia Kardoulia, European Consumer Centre (Greece), Guillaume Beurdeley, Deputy Secretary General of Les Entreprises du Voyage (France), Jean Pierre Kesteloot, Counsel at Liedekerke (Belgium), Joaquín López Vallés, Spanish National Markets and Competition Commission (Spain), Karmen Lutman, University of Ljubljana (Slovenia), Karolina Pruchniewicz, Nicolaus Copernicus University (Poland), Manuel David Masseno, Beja Polytechnic (Portugal), Marie Vandersanden, Attorney at law (Germany) Nataliia Godis, Mid-Sweden University (Sweden), Paola De Pascalis, University of Bari (Italy), Peter Vos, ANVR (Netherlands), Phil Cameron, University of Paris 1 Panthéon-Sorbonne (USA), Polyxeni Moira, University of West Attica (Greece), Rosaria Garozzo, Italian Competition Authority (Italy), Rui Aurelio de Lacerda Badaro, SBDI (Brazil), Sergio Castel Gayán, Department of Tourism of the Government of Aragon (Spain) Yana Yakushina, University of Ghent (Russia), Xhon Skënderi, University of Tirana (Albania), Zoltán Bartucz, Hungarian State Aid Monitoring Office (Hungary)
Ibero Americam Chapter Ibero American Editorial Board Alex Sanchez, Instituto Hondureño de Turismo (Honduras), Allan Kuster, Lawyer (Aruba), Anggie Flies Añon, University of Magellan (Chile), Arturo Aliaga-Grez, Lawyer (Chile), Carlos Armas Morales, Universidad Nacional Mayor de San Marcos (Peru), Carlos Mario Molina Betancur, Member of the Colombian Jurisprudence Academy (Colombia), Carmen Martinez Arnaud, CONFOTUR (Dominican Republic), Dénis Ivan Lanuza, National Autonomous University of Nicaragua at León (Nicaragua), Earlston Mcphee, Director – Sustainable Tourism Planning at Bahamas Ministry of Tourism (Bahamas), Edgardo Lovera Riquelme, Duoc UC (Chile), Elizabeth Villalta, Ambassador (El Salvador), Elvi Marina Ortega Sáez, University of Havana (Panama), Enrique Mota Flores, Unicaribe (Mexico), Esteban Szmulewicz, Catholic University of the North (Chile), Eugenio del Busto, National University of Quilmes (Argentina), Eugenio Hernández-Bretón, Baker & McKenzie, S.C. (Venezuela), Fabio Londoño Gutiérrez, Instituto Colombiano de Derecho Tributario y Aduanero (Colombia), Freddy Andrés Hung Gil, University of Havana (Cuba), Freddy Sánchez Merino, Simón Bolívar University (Venezuela), Gabriela Roca, Corporate Affairs and Sustainability Director at Corporación AG (Guatemala), Gonzalo Casanova Ferro, University of Buenos Aires (Argentina), Graciela Güidi, University of Buenos Aires (Argentina), Hector Morales, Lawyer (Guatemala), Hermes Navarro, Costa Rican Tourism Board (Costa Rica), Iván La Riva Vegazzo, National University of Trujillo (Peru), Ivan Lopez Villalba, Fenacaptur (Ecuador), Jens Thraenhart, Vice Chair UNWTO Affiliate Members (Barbados), Joandre Ferraz, Lawyer (Brasil), Juan José Alvarez Sardiñas, Director Counsel, Ministry of Tourism (Cuba), Lenin José Andara Suárez, University of the Andes (Venezuela), Magaly Arze López, Lawyer, Bolivia, Marcelo Oliveira, ABAV (Brazil), Maria Luisa Garzaro, Guatemala Tourist Board (Guatemala),
fi Federico Dangelo Martínez, University of Belgrano (Argentina), Gustavo Néstor Fernández, National University of Rosario (Argentina), Marina Ortega, University of Havana (Panama), Mario Martínez Sandoval, Benjamín Valdez & Asociados Law Firm (El Salvador), Mateo Estrella, University of Cuenca (Ecuador), Nicolás Cobo Romaní, Ponti cal Catholic University of Chile (Chile), Roberto Ruiz Díaz Labrano, National University of Asuncion (Paraguay), Robin Montano, Lawyer (Trinidad & Tobago), Romina Santroni, Lawyer (Dominican Republic), Sandra Salinas Baldivieso, Inter-American Network of Environmental Law Specialists (Bolivia), Sandra Sofía Arcos Valcárcel, University of Buenos Aires (Argentina), Santiago Aramburu, University of Buenos Aires (Argentina), Sebastián Moreno Fleming, Saint Thomas Aquinas University of the North (Argentina), Sheila Sánchez Bergara, University of Lleida (Cuba), T. Jennifer Edwards, Tourism Organisational & Strategic Development Specialist (Bahamas), Tatiana Siercke, Instituto Hondureño de Turismo (Honduras), Weldon Black Zaldivar, Unidroit scholar (Paraguay)
Tourism is, by its nature, an international vocation. We travel. We visit distant countries. Lands and cities of the world are explored. This is the story of travel and tourism, from the great explorers to the Grand Tour. One would have expected that the Law of Tourism would also be born with this international vocation. It was not so. The reasons are many and complex. The youth of our discipline, the shyness of those who dealt with Tourism Law, and the low consideration of colleagues who taught classical subjects. But above all, the legacy and tradition of the aspects of Public and Administrative Law that characterised the first studies on tourism and hospitality, topics that were inextricably linked to national law. Public and Administrative law are national and not international. And, at that time, there was not much space for comparative law. Indeed, some national conferences have been held in France, Spain, Italy and other European countries. However, international contacts between scholars were scarce. This was the situation when many European scholars received the unexpected invitation to participate in a meeting in Lisbon at ESHTE in 2016. The theme of the meeting was related to the European Directive on Package Travel. There was no doubt that the Directive would form the basis for a common European tourism law. An international meeting thus found a suitable justification. Many decided to participate. It could have been a conference – important and innovative, yes, but – like so many others. But supporting the initiative was the vision and commitment of Raul Filipe, President of ESHTE, and Carlos Torres. However, it was pleasant to discover that there were jurists from all over Europe who dealt with this new subject of ours. In the atmosphere of those days, we found ourselves a group, and it was pleasant. We were no longer alone. It could have ended there.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW What, in fact, was surprising was that the results of those days of studies, debates and confrontation found – thanks to the perseverance and patience of Carlos Torres, whom we soon called El Comandante – space and confirmation in a volume, The New Package Travel Directive. It gave concrete form to our work and spread throughout Europe. At that first meeting, others followed. UNWTO had proclaimed 2017 International Year for Sustainable Tourism for Development. And here we are again in Lisbon to discuss the Law of sustainable tourism. And here we see the light of a new powerful volume: Sustainable Tourism Law. Thus, was formed a group of scholars to whom we gave the name of “Lisbon Group”. A group that soon opened up to Latin America, as evidenced by the volume Derecho del Turismo en las Americas. A few weeks after the borders were closed around the world due to the unexpected pandemic, in April 2020, a major online conference with colleagues from all over the world gave rise to the publication of the book titled Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry. In September 2020, the online conference model persisted, resulting in another publication covering, among others, Wine Tourism: Wine Law. We are celebrating the 500 anniversary of the discovery of the Magellan strait with two online publications. On October 21, the launch of Derecho del Turismo en Las Américas brought together colleagues from all Latin American countries. On the same day, the Collective Commentary about the New Package Travel Directive, with colleagues from the then 28 Member States. More recently, Competition Law in Tourism and Tourism Law in Europe are publications demonstrating this group’s dynamism. The pandemic has not broken the bonds that have united and unite us. Here we are again here in Lisbon, more numerous and more motivated than ever, to consecrate what will be the voice of our group: The new international journal of Tourism Law, The International Journal of Tourism, Travel and Hospitality Law. Vincenzo Franceschelli
In today’s changing world, even tourism law is taking on new meaning. These days the world of travel must face new challenges after the Covid-19 pandemic and while the war in Europe is underway after many years of peace. Sustainable tourism and the protection of travellers require a major paradigm shift. Technological innovation and the digital transition are changing the travel experience. The possibilities offered by the Internet have revolutionized the distribution of travel services. New promotion and sales systems have been developed, and they have replaced traditional channels. The way service providers, organizers and travel agents relate to travellers has completely changed. In this ever-changing scenario, the importance of sharing common rules is emphasised by the fact that the tourism sector and the travel market play an important role in the EU economy. Europe is the main world tourist destination. Tourism plays a fundamental role in the development of many European regions, especially where development is lagging, also considering its potential for socioeconomic benefits and job creation, which is especially true for young people. It has also shown remarkable resilience and has undergone steady growth, even during the recent crisis. Considering the deep transformations which have recently affected the world of travel, the legal framework needs to be updated to the latest developments in the tourism sector to adjust it to the current reality of the market, getting rid of ambiguities and filling regulatory gaps. In a period in which it is necessary to design a tangible perspective based on change and to promote sustainable environmental, economic, and social development, an original and complete reinterpretation of the regulatory landscape relating to the tourism and travel sector is equally essential. From this perspective, we are pleased to introduce the International Journal of Tourism, Travel and Hospitality Law (IJTTHL), which is intended to present key contributions by some of the most prestigious researchers on these subjects. It will constitute a comprehensive collection of works with a wide perspective in the field of tourism law, a useful tool for professional lawyers, as well as for
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW economic operators and public entities. This is a fundamental initiative and a valuable opportunity to offer a pivotal contribution to the international legal debate and to lead the change of the rules, starting from professional experience and a rigorous scientific approach. At a global level, the duty to implement new legal instruments for the protection of tourists, guarantee operators fair conditions and equal opportunities on the market, strengthen our public institutions, and improve the quality of our legal systems is more and more warned as an absolute necessity. With respect to these serious needs, the new law Journal can represent an important point of reference and contribute effectively to the development of regulation. We are finally aware that only effective common rules can guarantee the universal right to tourism for all and create the tourism of the future for a better world. Prof. Gavino Mariotti Rector of the University of Sassari Prof. Francesco Morandi President of the Italian Society of Tourism Law
As a Rector of the Federal University of Rio Grande do Sul, Brazil, it is an honour to co-present the International Journal of Tourism, Travel and Hospitality Law, coordinated by Carlos Torres, Professor at the Estoril Higher Institute for Tourism and Hotel Studies(ESHTE), in Portugal. In our globalized world today, the importance of the tourism sector and the social and legal challenges involved at the international tourism should be highlighted. We strongly welcome this new Journal. The International Journal ofTourism, Travel and Hospitality Law aims to contribute to the study of al the legal challenges involving the tourism sector globally. As endorsed by the Dean of our Law School and Dean of our Center for European and German Studies (DAAD), Prof. Dr. Dr. h..c Claudia Lima Marques, the group of researchers on Tourism Travel and Hospitality Law, coordinated by Carlos Torres, at this Journal are among the world’s leading what assure the quality of publication. It is a research group of specialists in this sector from all over the world and from the leading Universities and Research Institutes (such as the Sorbonne Law School, University of Salamanca, University of Milan-Bicocca, University of Sassari, University of Calabria, EHSTE among others) which has produced excellent results both in international conferences and in terms of publications that can be consulted on https://tourismlaw.pt. The Federal University of Rio Grande do Sul is eager to help in such endeavour, as ourexperts have already help to develop the International Code of the Protection of Tourist (ICPT) by the UN World Tourism Organisation (Madrid), but other issues, such as Ethical and Sustainable Tourism, Protection of Tourists-Consumers in Emergent Situations, like the COVID-19 pandemic, Regime of the Package Travel and International Air Transportation, Responsibility of Travel Agencies and for Human Rights violations during travel and tourism, Competition Law in Tourism, Tourism Law in theAmericas and Mercosur, can have be subject of our experts contribution. As our region in South Brazil devellops more and more the wine tourism we are open to learn from other experiencies and to try to contribute at this new discussions.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW I congratulate the initiative ofthe of the International Journal of Tourism, Travel and Hospitality Law and thank the honor to involve experts from our University. Carlos André Bulhões Mendes Rector
As the dean of the University of Calabria (UNICAL), I am honoured to be invited to participate in the presentation of this new international journal. The International Journal of Tourism, Travel and Hospitality Law (IJTTHL) will be attended, infact, by authors, publishers and members of the scientific committee, among the world’s leading experts on tourism, and the approach to the subject will be, as broad as possible, and with priority for the main current issues: from sustainability to competition, to legal initiatives. With the amendments introduced by the Treaty of Lisbon of 13 December 2007, the tourism sector was explicitly recognised in Primary Law. This as a consequence meant for the european legislator the need to set as a specific aim that of: “encouraging an incentive environment to the development of companies in the sector” and “supporting cooperation between member states, particularly through the exchange of best practices”. For this purpose, the second paragraph of article 195 of the Treaty on the Functioning of the European Union gives the European Parliament and the Council the power to approve “specific” measures. And this is the case, for example, with the intervention aimed at modernising the regulations on travel packages and, in particular, at filling the gaps in the implementation of Council Directive 90/314/EEC, travel, holiday and complete travel. Although the previous Directive already provided significant protection for purchasers of traditional “pre-packaged travel packages”, the law was not adequate for changes in the “digital age”. This inadequacy has long led to a “legal fragmentation”, which has prevented the improvement of the internal market for tourism, making it increasingly difficult (especially for small businesses) to offer tourist services in a country other than that of establishment. That said, it is clear that complete harmonisation is needed in order to establish uniform rights for consumers and fair conditions for economic operators, in a sector which, in addition to being strategic for an adequate economic development of the union, represents the field of choice in which consumers play an increasingly active role, day after day.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW My wish is, therefore, that the International Journal of Tourism, Travel and Hospitality Law (IJTTHL) can make a valuable contribution to the achievement of the goal. Prof. Nicola Leone Dean of the University of Calabria
Scientific journals represent the most vital means of dissemination of research findings with special focus on particular academic disciplines or subdisciplines. As a rector of Trnava University in Trnava, Slovakia, I am honoured to co-present a newly-established International Journal on Tourism, Travel and Hospitality Law. Trava University is a humanitarian and socially oriented educational institution comprised of five faculties including the Faculty of Law. We educate our students for future employment that involves the willingness to help others and preparation for quality and fulfilling life experiences. Travel undoubtedly belongs to the list of immensely challenging human experiences and is sometimes regarded as one of the most intense forms of learning. It is also generally promoted as a means of boosting one’s happiness and lowering the level of stress. However, if we look at this topic from practical point of view, particularly when it comes to law associated with travel and its development, we have to appreciate the contribution of Carlos Torres, professor at the Estoril Higher Institute for Tourism and Hotel Studies, whose effort regarding organisation of conferences on travel and tourism law and creation of personal network of travel lawyers is widely acknowledged. Thanks to these initiatives, the Portuguese – English language website https://tourismlaw. pt has been gradually transformed into a reliable source of information on travel and tourism law. Publications of Estoril Higher Institute for Tourism and Hotel Studies (available in printed or electronic form at the website mentioned above) are well-known among travel law specialists. It would be difficult to single out just one book, but if forced to do so, internationally well-researched commentary on the new Package Travel Directive would definitely be an examle worth highlighting. Faculty of Law of Tranva University represented by professor Monika Jurcová has joined this international network of travel lawyers by publications and presentations at several international conferences. This cooperation supports further development of travel law in Slovakia and allows proposing of a new teaching course on travel law at our Faculty of Law.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW The International Journal of Tourism, Travel and Hospitality Law seems to be the next logical step in the line of activities mentioned above As a rector of Trnava University, I am very well aware of the need and importance of the scientific journal of this type for further development of our scientific work in the respective field, with full understanding of the fact that dissemination and promotion of the best outputs in foreign scientific communities is inevitable for our progress and growth. Therefore, I applaud and highly appreciate the establishment of the International Journal of Tourism, Travel and Hospitality. Law. (ITTHL). I wish it succeeds in engaging many esteemed authors and contributors and finding a broad readership. René Bílik Rector
As Vice Chancellor of the University of the Balearic Islands, it is my honour to jointly present the International Journal of Tourism, Travel and Hospitality Law, coordinated by Professor Carlos Torres at the Estoril Higher Institute for Tourism and Hotel Studies (ESHTE) in Portugal. We live in a globalised world and the tourism sector involves major legal challenges that deserve analysis. The International Journal of Tourism, Travel and Hospitality Law aims to contribute to the study of all legal challenges involving the tourism sector globally. The Tourism Travel and Hospitality Law research group, coordinated by Carlos Torres, endorses the excellence of researchers to be published. The group comprises sector specialists from across the globe and has produced excellent results, both at international conferences and in terms of publications, which can be viewed at https://tourismlaw.pt. The Tourism Travel and Hospitality Law group has worked on contemporary issues including Sustainable Tourism, the new Package Travel Directive, Wine Law, Competition Law in Tourism, Tourism Law in Europe and the Americas, as well as the legal impacts of COVID- 19 on the Travel, Tourism and Hospitality Industry. As Vice Chancellor of a university located on an island that mainly lives from the tourism sector, I can corroborate the importance and need for serious legal studies that look into current issues impacting the sector. We are pleased that professors from the University of the Balearic Islands are part of this project. Professors who have collaborated for many years with researchers from universities such as the Sorbonne Law School, University of Salamanca, University of Milan- -Bicocca, University of Sassari, University of Calabria, to name but a few. I congratulate the initiative underlying the International Journal of Tourism, Travel and Hospitality Law. The journal’s quality publications will undoubtedly benefit the tourism sector. Jaume Carot Vice Chancellor of the University of the Balearic Islands
The new lnternational Journal of Tourism, Travel and Hospitality Law (UTTHL) has been recently launched by the professors and researchers from several renowned universities under the leadership of professor Carlos Torres from Estoril Higher lnstitute for Tourism and Hotel Studies in Portugal. I have been informed that this group of esteemed scholars wishes to add substantively to the seriousness of research and scholarly work in the legal field focused on the improvement of tourism, travel and hospitality, which is a necessary endeavour that needs to be highly praised. As the dean of the University of Zagreb Faculty of Law with abundant experience as an editor-in-chief and a member of editorial boards of several respected and well-indexed international scholarly journals in Croatia and abroad, I congratulate the initiative of the lnternational Journal of Tourism, Travel and Hospitality Law (UTTHL), I expect that many law scholars from various related legal and other scientific disciplines from all over the world will soon recognize this journal as a proper publishing platform and an institutional point of reference for all those committed to the improvement of their scientific attainment. I do hope that my colleagues, professors and experts from the Faculty of Law in Zagreb and other Croatian academic institutions will be among those who will significantly contribute to the new journal’s success. Professor Ivan Koprić PhD Dean
As Rector of the University of Parma, I am very pleased to offer my best wishes to this new international magazine, which addresses an important sector like tourism from different points of view, with a particular focus on its legislative aspects. I am even more pleased considering the long and illustrious tradition of our University in the study of law. The “International Journal of Tourism, Travel and Hospitality Law” aims to become a platform for dialogue among specialists in tourism law: a place for discussion and for proposals for an industry that requires clarity and specific rules. I underline this coming from a country where tourism is one of the most fundamental assets, fully aware of the crucial role of the sector (and its considerable further potential) in the community market. Following the dark period caused by the pandemic, travel has now greatly recovered and the trend does not appear to be temporary. In order to support recovery and regulate the tourism sector, policy action will need to guarantee legislative uniformity: a necessary requisite to develop the industry’s future. It is necessary to fill the existing regulatory gaps (which became apparent recently, for example, in the years of the Covid-19 health emergency) and to have rules that are not only certain but also shared (the theme of sharing is particularly important for such a complex reality), to ensure that a rapidly and continuously transforming sector can keep up with changing times, changing society, changes in the consumer. Like many other areas, tourism has also “changed its skin” in recent years and continues to do so. The modes of travel and traveling are very different from even just a few years ago, and the same can be said for access to travel, its promotion, its sale/purchase, its use, the relationship between operators and travellers and much more. This is why it is essential that the legislative framework keeps pace, to adequately protect both consumers and operators and to accompany the evolution of the sector in the most appropriate way.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW I am confident that a platform like the “International Journal of Tourism, Travel and Hospitality Law” will be a significant point of reference and discussion on these themes, for lawyers, professionals, operators, and institutions. It is with this aspiration that I would therefore like to wish the magazine and all the people who will be involved in it the best of luck in their work. Paolo Martelli Rector of the University of Parma
As Rector of the University of Salamanca, it is an honour to support this new initiative promoted by a group of Professors specialised in Tourism Law, the so-called The Group of Lisbon, to create the International Journal of Tourism, Travel and Hospitality Law. After several international conferences in Europe (Spain, France, Italy and Portugal) and Latin America (Argentina, Brazil, Mexico and Uruguay) and several collective books on European and Latin American tourism law (Sustainable Tourism Law, 2019; Collective Commentary about the New Package Travel Directive, 2017 and 2020); Tourism Law in the Americas, 2020; Wine Law, 2021; Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry, 2022; Competiton Law in Tourism and Tourism Law in Europe, 2022, several professors come together to launch this international journal with a vocation of becoming the meeting point for all specialists in tourism law in Europe and Latin America. In the glossary of terms of the World Tourism Organization (UNWTO), tourism is defined as „a social, cultural and economic phenomenon that involves the movement of people to countries or places outside their usual environment for personal, professional or business reasons.“, and the pandemic caused by COVID 19 has hardened us its importance in the world economy, as well as the absence of an international legal framework to help tourists in emergencies. Undoubtedly, tourism is a multidisciplinary science. The protection of tourists at a global level has been embodied in the „International Code for the Protection of Tourists“(ICPT) prepared by the World Tourism Organization (UNWTO). The code was approved at the 24th UNWTO General Assembly, held in Madrid between November 30 and December 3. The ICPT was created to increase the protection of tourists by determining the minimum standards for emergencies and reinforcing the rights of tourists post-COVID-19. In short, it aims to resolve problems of vulnerability of tourists in exceptional cases, and the coordination of sending and receiving countries will be necessary. The UNWTO Secretary-General, Zurab Pololikashvili, had already warned that the COVID-19 crisis had exposed the absence of an international legal
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW framework to help international tourists in emergencies, as well as the lack of uniformity at the international level regarding the protection rights of tourists as consumers. The closure of borders caused by the pandemic affected thousands of tourists who were surprised abroad, with thousands of flights cancelled and in a situation of non-attendance due to a lack of resources that sometimes made it impossible to cover basic needs. The lack of clarity regarding the obligations, duties, and responsibilities of each other to deal with emergency situations created uncertainty regarding the rights of tourists that negatively affected their confidence in international travel. At the European level, with the entry into force of the Treaty of Lisbon, the importance of tourism is expressly recognised, and, by article 195 of the TFEU, the European Union is competent to support, coordinate and complement the action of the States. In its second section, it establishes that „The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall establish specific measures to complement actions within the Member States to achieve the objectives referred to in this Article, excluding any harmonisation of the laws and regulations of the Member States“. For all these reasons, it is a great success to launch a journal in which all researchers in tourism law worldwide can meet. Undoubtedly the renown of the authors is coupled with the interest and quality of their contributions on highly topical topics. The University of Salamanca includes in its Statutes the commitment to „Stimulate scientific and cultural relations with the Universities and institutions of the other countries and especially with the European and Latin American ones“; that is, an unequivocal commitment to its European and Latin American vocation, thus continuing a historical tradition of an institution that celebrated its VIII Centenary in 2018. Higher Tourism Studies were incorporated into the University through Decree 259/1996, of February 16, but the University of Salamanca pioneered Spain by betting on these studies, creating the University Diploma in Tourism Techniques (DUTT). In the 1988-89 academic year, to be taught at the Regional School of Tourism of Castilla y León, which had jurisdiction over tourism at that time, and with the Santa Teresa Cultural Foundation of the Provincial Council of Ávila. Since the 1998-99 academic year, the University of Salamanca began to teach official titles in tourism, and among the many complimentary activities, it has been organising various conferences and congresses on „Law and Tourism“.
I hope this collaboration between universities will strengthen our friendship ties with academic institutions from all countries and continue to create meeting places for researchers from all continents. Ricardo Rivero Ortega Rector of the University of Salamanca
As Academic Coordinator in charge of the Economics Bachelor program, the Health Economics and Banking and Finance Master programs at Sorbonne University Abu Dhabi, I am delighted and honored to co-present the International Journal of Tourism, Travel and Hospitality Law which is coordinated by Pr. Carlos TORRES – Professor at Estoril Higher Institute for Tourism and Hotel Studies (ESHTE), in Portugal. The International Journal of Tourism, Travel and Hospitality Law (IJTTHL) will be formed of top- quality authors, publishers and members of the scientific committee, among experts on tourism from the international field with an accent being placed on main issues such as sustainability and legal initiatives. The International Journal of Tourism, Travel and Hospitality comes to play a crucial role in identifying the social; economic and legal challenges that may destabilize the international tourism. Thus, the importance of this journal comes in researching and publishing quality papers that tackle these challenges and proposing solutions based on intensive studies. Many factors such as diversification and collaboration as well as partnership form the great framework of resiliency by which is identified the tourism sector. Being resilient, the tourism sector shows promising results when it comes to its main two indicators: international tourists’ receipts and international tourists’ arrival and the International Journal of Tourism, Travel and Hospitality Law (IJTTHL) conducted by Pr. Carlos TORRES, through its paper, will be a tool to express this resiliency and the potential correlations to be constructed with other topics such as climate change. I therefore congratulate the initiative of the International Journal of Tourism, Travel and Hospitality Law (IJTTHL) and look forward to witness soon its valuable academic contributions. Dr. Mohamed El Halabi El Kayal Academic Coordinator Researcher in International Tourism and Climate Change Sorbonne University Abu Dhabi
Liability of online platforms in tourism sector Monika Jurčová1 1. Rise of platform economy and gamification. 2. Online platform, its definition and classification criteria. 3. Platforms operating in the tourism market and their services. 4. Liability of online platforms. 4.1 Primary liability. 4.2 Secondary liability and safe harbour under E-commerce directive. 4.3 Liability under Package Travel Directive 2015. 5. Conclusion The paper provides an overview of the main factors contributing to the rise and importance of online platforms in the tourism sector. Basic criterias for distinction between various online platforms functioning in the market of travel and hospitality services have been introduced. The main part of this paper deals with the sources of liability of online platforms. The special attention has been paid to the possible sources of their secondary liability as it has evolved in the legislature and case law of European Union. The paper has been prepared shortly before adoption of the Digital Services Act and Digital Markets Act and therefore it may serve as the topical explanation of the main reasons contributing to the need for adoption of new measures. Future will show whether ambiguity of the past concerning the liability of the online platforms will be overcome by new legislation. Keywords: online platform, travel service, liability, information society service, intermediation. 1. RISE OF THE PLATFORM ECONOMY AND GAMIFICATION The tourism and hospitality sector is one of those that has been hugely transformed and technology-driven in the last decade. This transformation is DOI https://doi.org/10.60559/ijtthl2023-001 1 Department of Civil Law and Commercial Law, Faculty of Law, Trnava University, Slovakia; e-mail: email@example.com. The paper has been prepared under project APVV-17-0562 Platform based contracts.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW mainly due to the online platforms and various smart tourism mobile apps.2 The internet has become an essential tool in tourism and hospitality, facilitating potential tourists to search for information on products and services, compare and evaluate the alternatives and eventually selecting and buying the finalized alternative.3 Rise of the platform economy in almost all relevant sectors, tourism included, has not been enabled solely by technological progress. The phenomena of ‘gamification’ succesfully implemented in many platforms business models significantly contributed to the succes of online platforms. Gamification brings the application of typical elements of game playing (e.g., point scoring, competition with others, rules of play) to other areas of activity, typically as an online marketing technique to encourage engagement with a product or service. ‘Gamification is exciting because it promises to make the hard stuff in life fun’.4 Examples of gamification can be found in Airbnb, where the platform uses badges and travel coupons to engage hosts and accommodation providers (e.g. ‘Superhost‘badge), in Ryanair with the tempting possibility to fly anywhere on the possible lowest price or in Booking.com where the guest may reach various levels of „Genius ranking“. Gamification implemented by digital platforms helps to improve services and it has been argued that it generates engagement and value for both providers and tourists/users. Through game elements, users are more informed and involved, and they participate in the co-creation of value, while service providers acquire information from users. In addition, sustainable as well as healthy behavior can be promoted by educating and transmitting rules through games.5 Models implementing gamification to transactions executed on the online platform bring an inherent risk that cannot be overlooked. While playing games it is easy to forget about duties and obligations, responsibilities, and liabilities. 2 Kennedy-Eden and Gretzel, 2012, p.47-50. The apps may be divided to categories: Navigation, Social, Mobile Marketing, Security/Emergency, Transactional, Entertainment, and Information. 3 „United Nations World Tourism Organization (UNWTO) confirmed in its report that 95 percent of users exploited web channels to gather travel-related information and about 93 percent indicated that they visited tourism web sites while planning for vacations. The entire process has resulted in the emergence of e-tourism reflecting digitization of all processes and value chains in tourism, travel, hospitality and catering industries. European Travel Commission identified the web as the main primary source of information for searching or booking suitable travel destinations. In the last decade, the tourism and hospitality sector is characterized by a wide range of electronic applications (e.g. social networks, review Web sites, blogs, interactive websites and photo- and video-sharing platforms), facilitating interactions among the web- -users.“Vij, 2019. 4 Pasca, Renzi, Di Pietro and Guglielmetti Mugion, 2021, p. 691-737. 5 Ibid.
LIABILITY OF ONLINE PLATFORMS IN TOURISM SECTOR Therefore, it is the duty of lawyers to draw attention to the need to regulate such platforms. The functioning of digital online platforms creates several diverse legal issues. Liability of involved actors is one of the most frequently discussed. Liability is a specific form of legal responsibility that is connected to the violation of a duty that the person held liable was obliged to comply with, or to the infringement of one’s rights. Obligations and duties may be imposed by the contract or may be derived from the law. Hand in hand with liability goes the social responsibility of the platform, which could manifest itself through the cooperation of the platform operator with the regulatory authorities. 6 2. ONLINE PLATFORM, ITS DEFINITION AND CLASSIFICATION CRITERIA Online platform creates a two-sided market, as it attracts and enters relationships with two groups of users. An example that is not exclusive to the digital world represents the media market, where advertisers on one side meet viewers, readers, and listeners on the other side. Online intermediary platforms also create a two- -sided market. Intermediaries like booking.com know that the more guests visit their website, the more likely it is that accomodation providers are to use their services and vice versa. Different types of two-sided markets can be distinguished. Most important for the analysis of two-sided market is the distinction between two-sided transactional and non-transactional markets. Two-sided non-transactional markets, such as most media markets (e.g. Tourism Review, travel and hospitality news portal), are characterized by the absence of a transaction between the two sides of the market and, even when an interaction is present, it is usually not observable, so it is not possible to set a per-transaction fee or per-interaction fee or a two-part tariff. Two-sided transaction markets, such as those providing intermediation services, are instead characterized by the presence and observability of a transaction between the two groups of platform users. Consequently, the platform is not only able to charge a price for joining the platform but also one for using it–i.e., it can ask for a two-part tariff. 7 6 Jurčová, 2018, p. 266. 7 Filistrucchi,Geradin, van Damme, and Affeldt, 2013, p.1-30.
INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW The term ‘online platform’ is widely used not only in academic literature but in our everyday speech as well. For the sake of theoretical and practical clarity it is important to distinguish between the notion of ‘online platform’ and the term ‘operator of an online platform’: The former is a kind of ‘virtual marketplace’ and an ecosystem comprising different agents, whereas the latter is a person or a company who runs the platform.8 For example, company Gotogate, Inc. is the operator of the booking portal – platform us.mytrip.com. Apart from already mentioned distinction between transactional and non transactional markets, other classifications of on-line platforms may be done according to various criteria (activities, sectors of relevance, actors, level of control, etc.) These criteria are of the utmost importance for determination of the applicable law (B2B or B2C transaction, sectoral legislation) and the liability of platform. According to activities we differentiate among: web hosting providers,9search engines,10 online media sharing providers,11 social media, networking and discussion forums, allowing users to connect and communicate publicly or semi-publicly or messaging platforms, allowing users to communicate and share content privately; matchmaking and e-commerce platforms, facilitating the transaction of services, marketplaces, app stores; within this group, a narrower category may be identified, namely: collaborative platforms, offering non-professional actors to offer offline-services on an occasional basis (e.g. short term let of one apartment); and the other matchmaking platforms, such as dating apps;12 The present EU law has already reflected the existence of the on-line platforms. Modernisation of Unfair Commercial Practices Directive has been processed by the Directive 2019/2161 known broadly as the Omnibus Directive or “Enforcement and Modernization Directive”. It came into effect on 7 January 2020 and introduced the term ‘online marketplace’ that means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers. Furthermore, Regulation 2019/1150 on promoting fairness and transparency for business users of online intermediation 8 Filatova-Bilous, 2021. 9 Allowing users to host a website or other internet-based offering. 10 Allowing users to carry out systematic web searches for particular information, specified in a textual web search query, indexing results accordingly. 11 Allowing publication and consumption of online content and which, according to the type of material shared, can be further distinguished in news aggregation and broadcasting, music streaming, video streaming, blogs, etc. 12 Bertolini, Episcopo, Cherciu, 2021, p. 4.
LIABILITY OF ONLINE PLATFORMS IN TOURISM SECTOR services is specially targeted to this area and it has introduced set of rules governing principles for relations between providers of online intermediation services and online search engines and business users and corporate website users that offer goods or services to consumers through these channels. 3. PLATFORMS OPERATING IN THE TOURISM MARKET AND THEIR SERVICES For our purposes are most relevant platforms connected with provision and intermediation of travel services. If we borrow the definition of ‚travel service’ from the Package Travel Directive 2015, most prominent services in tourism are • carriage of passengers, • accommodation, • rental of cars, other motor vehicles or motorcycles, • and ‘other services’ as admission to concerts, sport events, excursions or event parks, guided tours, ski passes and rental of sports equipment such as skiing equipment, or spa treatments. Platforms operating in the tourism market may have a different nature in terms of the activities and level of control, e.g., interference or influence on the actual provision of the service by a third party. The operator of the platform can participate in the market by controlling the transactions carried out on the given platform, while the contracts are concluded directly by the platform, or their conclusion is at least demonstrably mediated by the platform. Such intermediary platforms achieve their income exclusively or at least predominantly through commissions from concluded contracts (Airbnb, booking.com, etc.). The role of the platform as the intermediary is to facilitate mutual transactions between providers and service users, but it is not excluded that relevant services are also provided by the platforms themselves.13 Platforms enable customers to conclude contracts for the supply of services with suppliers within a digital environment controlled by the platform operator or they enable suppliers to place advertisements within a digital environment controlled by the platform operator which can be browsed by customers in order to contact suppliers and to conclude a contract outside the platform (e.g. Tripadvisor redirecting to the platform booking.com); 13 Novotná and Hulmák, 2020, p. 23.tourismlaw.pt