www.tourismlaw.pt Rethinking the liability of package tour operators in Spain Inmaculada González Cabrera Spain, University of Las Palmas de Gran Canaria International Journal of Tourism, Travel and Hospitality Law PRE-PRINT
RETHINKING THE LIABILITY OF PACKAGE TOUR OPERATORS IN SPAIN 1 Inmaculada González Cabrera 2 Professor of Commercial Law University of Las Palmas de Gran Canaria Contents: I. Introduction. II. The regulation of liability for the execution of the package in the European Union Directives. III. The evolution of the liability of package tour operators in the Spanish legislation. IV. The discrepancy in the interpretation of article 11 of the LVC. V. The unjustifiable change promoted through article 162 in 2007. VI. The coherence of article 161.1 of the TRLGDCU, after its reform in 2018. VII. The inconsistency in the regulator's position with the change made to article 161.1 of the TRLGDCU in 2022. VIII. Final considerations. I. Introduction One of the most controversial and interesting issues in Spain since 1995 has been the liability of the operators involved in the organisation, marketing and sale of a package holiday for the defective execution of the package. The reason for this is the lack of legal certainty that the lack of regulation of this specific issue has created in the doctrine, in the jurisprudence, among intermediaries as well as among consumers, The European legislator has dealt with this issue in an uneven manner in the two directives that have dealt with the subject, i.e. Council Directive 90/314/ EEC of 13 June 1990 on package travel, package holidays and package tours (Package Travel Directive) and Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and This work has been carried out within the framework of the following Research Projects: (i) the one 1 awarded by the University of Cordoba within the framework of the R&D&I Projects of the Andalusia ERDF Operational Programme, file number 1263550, "El régimen jurídico del turismo colaborativo en Andalucía. A propósito de la (des)regulación española, portuguesa y latinoamericana", whose PIs are professors Humberto Gosálbez Pequeño and Manuel Rebollo Ruig; and (ii) the co-funded by the Consejería de Economía, Industria, Comercio y Conocimiento and Programa Operativo FEDER Canarias 2014-2020, ProID2020010045, under the title "De la economía colaborativa al turismo sostenible: Nuevos retos del turismo canario", whose PI is Inmaculada González Cabrera. Research professor in the Tourism, Territorial Planning and Environment Research Group (TOTMA), 2 which is part of the ECOAQUA University Institute of the University of Las Palmas de Gran Canaria. This double affiliation is indicated in compliance with the regulations of the University of Las Palmas de Gran Canaria. Orcid Code: 0000-0003-3049-8690. Contact: firstname.lastname@example.org.
linked travel services (Package Travel Directive and Package Tour Operator Directive); but, in my opinion, in the end it is not dealt with in a solvent way by allowing States to opt for a different liability regime. This also means, as we shall see, that in its internal transposition in our country, the issue has been dealt with in a variable or changing manner over time, which could distort the protection of the traveller. It is true that the European Union has been working for decades to improve the protection of passengers because of the imbalance between the professional and the consumer with regard to the terms of the contract, which is usually a mass contract to which the user subscribes with little or no negotiation. This imbalance has been the basis, for years, for a whole series of rules designed to provide better protection for the consumer, and to adapt the organisation of package travel itself, as one of the most important mass contracts that the user enters into when choosing a leisure or holiday trip. The subject of this paper is exclusively related to the evolution of the Spanish legal regime regarding the liability of package tour operators towards the consumer (nowadays the traveller), in order to determine how operators react and whether the steps taken by the Spanish legislator benefit the consumer or not. II. The organisation of liability for the performance of the package in the EU Directives In the European Union, two directives have dealt specifically with this issue. The first, Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (DVC), which sought to harmonise the regulation of this contract within the territory of the Union; and Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel, package holidays and package tours (DVC&SVV), which was adopted to remedy the failure of the previous Directive, which did not achieve the desired harmonisation, and to adapt the organisation of package travel to social reality, the development of the
internet and the greater autonomy of travellers, who combine different travel services to organise their own travel or holidays . 3 One of the aims of the DVC was to harmonise the different laws of the Member States. Its aim was to defend a single market in tourism, which was becoming increasingly important, so that travellers would enjoy comparable conditions of protection, irrespective of the Member State in which the package was purchased. In reality, however, it was not very ambitious in its aim, since on the specific question of the liability of the operators involved in the organisation and marketing of the package (at that time, the organiser and the retailer), it only imposed on the Member States the obligation to take the necessary measures to make one of these operators liable for partial performance or breach of the contract (Art. 5 DVC), without specifying which of them should be liable to the consumer for such damage, or in the case of both, how they should do so, i.e. jointly or severally. The European legislator has therefore not achieved the desired harmonisation on this point . 4 This disclaimer was later qualified in the DVC&SVV, which makes the organiser solely liable for the lack of conformity and for the performance of the package, but allows Member States to extend it to the retailer, which does not achieve the desired harmonisation, although it does allow for better consumer protection. The above-mentioned Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Adapting European package travel rules for the digital age [COM(2013) 513 final] concludes that the DVC Major social changes, the development of the Internet and the greater autonomy of tourists, with less 3 dependence on physical travel agencies, mean that the organisation of package travel is becoming outdated over time. This is evidenced by the adoption in 2013 of the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Adapting European package travel regulation for the digital age [COM (2013) 513 final], when it states "The travel market has also been transformed by the liberalisation of the air transport sector, which has made air tickets cheaper and more accessible", [COM (2013) 513 final], p. 5. The DVC was a minimum guideline. Vid. Explanatory Memorandum and Article 8. This means that, 4 despite the effort to regulate package travel and the eventual harmonisation it achieved, it failed to achieve the intended harmonisation by allowing Member States to regulate the non-mandatory aspects of package travel or by allowing unfortunate choices such as the liability of the operators in the execution of the package. Some Member States took the text literally, others accepted the joint and several liability of the two operators, and some extended liability to third party service providers. Others, however, accepted the liability of the organiser and the retailer according to their respective scope of management of the contract. See Gómez Calle, 2011, p. 514, and Pérez Moriones, 2022, p. 194.
has strengthened the quality of travel services, but needs to be updated to adapt to market developments . 5 This adaptation is made by the DVC&SVV, which recognises that, apart from the social and technological changes which have led to a significant change in the way in which package travel and other combined services are organised today, the DVC leaves a wide margin of discretion to the Member States in its transposition into national law, which has led to the divergences observed in the different national legislations, including the way in which the liability of the organisers of these trips is dealt with. Disparities between the rules on passenger protection in different Member States discourage travellers from one Member State from purchasing package travel and related travel services in another Member State and discourage organisers and retailers from one Member State from selling such services in another Member State. In order to allow travellers and traders to benefit fully from the internal market, while ensuring a high level of consumer protection throughout the Union, it is necessary to make progress in the approximation of the laws of the Member States on package travel and related travel services (MS No 6). Thus, in contrast to Article 5 of the DVC, Article 13 of the DVC&SVV provides that "Member States shall ensure that the organiser is liable for the performance of the travel services included in the package contract, irrespective of whether these services are to be supplied by the organiser or by other travel service providers", It also allows those States "to maintain or introduce into their national legislation provisions providing that the retailer shall also be liable for the performance of the package", in which case the relevant provisions of the Directive concerning the organiser's liability shall apply to the organiser. It is therefore clear to the European Parliament and the Council that the organiser is the operator who, as the name suggests, is capable of organising the package, regardless of how the package is put together, whether by one or more operators, and whether or not it is sold at a single point of sale (Art. 3. 2 of the DVC&SVV), so that the organiser is liable for the lack of conformity and the improper execution of the package, over and above the liability that the retailer may incur with regard to the information provided directly to the consumer and the documentation that must be provided to the consumer after the conclusion of the contract. Unlike the DVC, the DVC&SVV makes the organiser solely responsible for the provision of the package, regardless of whether these services are COM (2013) 513 final, p. 10. 5
provided by the organiser or by other suppliers. In fact, the most striking feature of the DVCC&SVV in this area is that it clearly states that at least one operator, in its capacity as organiser, will be liable for the proper execution of the package and may thus relieve the retailer of this liability. It should be 6 noted, however, that the retailer is not exempt from all liability. The retailer assumes important obligations regarding the information and documentation of the holiday and is therefore jointly liable with the organiser for the provision of pre-contractual information or for errors that occur during the booking process, unless these are caused by the consumer or by exceptional and unavoidable circumstances . 7 All in all, it seems that the DVC&SVV, in addition to attempting to reconcile optimal consumer protection along the lines of other pro-consumer directives, also seeks to balance the interests of entrepreneurs by ensuring a system that also favours operators and, ultimately, the market, by attempting to ensure greater similarity between state regulations and by seeking to improve the internal market within the European Union . 8 III. The evolution of the liability of package tour operators in Spanish law Given the changes brought about by the aforementioned Directives and the time that has elapsed between them, we must ask ourselves how this liability has evolved in Spain. By way of a brief summary, which I will elaborate on later, it should be noted that the CRD was transposed into national law by means of Law 21/1995, of 6 July, regulating package travel (LVC), which includes the liability of operators (in this case travel agencies) in Article 11. Subsequently, in 2007, in view of the fragmentation of consumer protection legislation in Spain, the Spanish legislator, through the fifth final provision of Law 44/2006, of 29 December, on the Improvement of the Protection of Consumers and Users, authorised the Government to merge various laws, including the LVC of 1995, into a single legal text, This has been repealed and package travel is now regulated in Book Four of Royal Legislative Decree 1/2007, of 16 November, which approves the revised text of the General Law for the Defence of Consumers and Users and other complementary laws In the opinion of part of the doctrine, this diminishes consumer protection. Vid. Berenguer Albaladejo, 6 2016, p. 47. Paniza Fullana, 2014, p. 5. 7 Zubiri De Salinas, 2020 a, p. 30. 8
(TRLGDCU) and, in particular, in Article 162, the liability regime. In my opinion, and as we shall see, this recasting went beyond the mandate received, since it transformed the liability regime contained in the repealed Article 11 of the LVC. Once the DVC had been replaced by the DVC&SVV, it became necessary to transpose it into domestic law, which was done by Royal Decree Law 23/2018 of 21 December on the transposition of directives on trademarks, rail transport and package travel and related travel services, which to that end reforms the TRLGDCU on package travel, with liability now regulated in Article 161, but maintaining the thesis of its predecessor, Article 162. Finally, Law 4/2022 of 25 February on the Protection of Consumers and Users in Situations of Social and Economic Vulnerability once again modifies the liability regime previously provided for in Article 161 of the TRLGDCU, which leads me to question the reasons for these changes and their justification. IV. The discrepancy in the interpretation of article 11 of the LVC One of the major problems of legal certainty that we have suffered in this country, especially during the period before and after the adoption of the LVC, has been the determination of the division of liability between the agencies that have organised and marketed the package travel vis-à-vis the consumer, as the organisation contained in the LVC has not allowed either the doctrine or the case law to take a unanimous position. The reason for this was the inadequate wording of Article 11 of the now repealed LVC. Indeed, the repealed provision stated that "[t]he organisers and retailers of package travel shall be liable to the consumer, according to the obligations that correspond to them by their respective scope of management of the package, for the proper fulfilment of the obligations arising from the contract, regardless of whether these are to be performed by themselves or by other service providers (...)". But it also went on to say that "[t]he liability shall be joint and several when different organisers or retailers concur jointly in the contract, whatever their type and the relations existing between them". This ambiguous wording led the doctrine and the courts to wonder what kind of liability was actually contained in the rule. Was it joint and several, i.e. would each party be liable exclusively for its own area of management, or was it joint and several, so that both parties,
irrespective of their area of management, would be liable to the consumer for lack of conformity or breach of contract? In my opinion, the wording of article 11 of the LVC, contrary to the majority of the jurisprudence of those years, allowed the defence that the liability of the various operators (travel agencies at that time) involved in the package was joint , each one being liable to the consumer in its own area of management, 9 allowing joint liability only when several organisers or retailers were party to the same contract . 10 This assertion is supported, on the one hand, by the consistent interpretation of the two paragraphs and, on the other hand, by the fact that it was made clear during the parliamentary procedure, since the bill in principle established the joint and several liability of the organiser and the retailer vis-à-vis the consumer in both Articles 9 and 11; however, the Senate modified the rule of joint and several liability, distributing the liability of both bodies according to the scope of their management and establishing joint and several liability as an exception in cases where different organisers or retailers are involved in the same contract . 11 However, this has not prevented the rule from being the subject of intense debate and from giving rise to a plurality and antagonistic minor jurisprudence, which in some cases has recognised the joint and several liability of all the agencies involved, sometimes the joint and several liability of these or one of them and the service providers who are the subject of the claim, and in other cases, which in my opinion are more in line with the Gómez Calle, 2011, p. 518, clarifies that in this field, although the concept of joint liability is accepted 9 without problem, even in the judgment of 20 January 2010, it is strictly speaking "that in which the duty of performance must be fulfilled jointly by a plurality of debtors", whereas the thesis defended in the aforementioned judgment and that supported by a large part of the doctrine actually defends "the delimitation of liability between organiser and retailer according to a certain criterion". We defended this in Cárdenas Negro, and González Cabrera, 2000, pp. 185 ff; González Cabrera, and 10 Cárdenas Negro, 2006 and 2009, pp. 79 and 81 f., respectively; as well as in González Cabrera, 2012, p. 119. This position was defended by the majority of the doctrine at that time. In this respect, see Algaba Ros, 2006 b, p. 58; Boldó Roda, 2000, pp. 225 ff; García Rubio, 1999, pp. 157 ff; Gómez Calle, 1998, pp. 225 ff; González Fernández, 2008, p. 1072; Martínez Espín, 1999, p. 1072; Martínez Espín, 1999, p. 1072. 1072; Martínez Espín, 1999, pp. 198 ff; Morillas Jarillo, 2006, pp. 473 ff; Navarro Belda, 2003, pp. 65 ff; Soler Valdés-Bango, 2005, pp. 369 ff; and, Vicent Chuliá, 1999, pp. 283 ff. Along these lines Pérez Escolar, 2013, pp. 139 ff. 11
wording of the rule, has defended or recognised the joint and several liability of the agencies involved . 12 This debate is ending in favour of joint and several liability, firstly with the Supreme Court's ruling of 23 July 2001, which settled a dispute that predated the entry into force of the LVC, and subsequently by maintaining this doctrine when the LVC was incorporated into the TRLGDCU in 2007. V. The unjustifiable change promoted through Article 162 in 2007 In order to put an end to the fragmentation of consumer protection legislation in Spain, in 2007, as I had predicted, the government was empowered to consolidate certain consumer and user protection regulations in a single text. Among these, the TRLGDCU of 2007 recasts the LVC of 1995, but the regulator went beyond its powers of recasting and took the opportunity to clarify the aspects of the controversial liability contained in Article 11 of the LVC, finally recognising the joint and several liability of the organiser and the retailer vis-à-vis the consumer. In fact, the incorporation of the LVC into the TRLGDCU did not entail its clear reproduction, integrating it into the new one, as would have been logical according to the mandate Vid., among others, SSAP Málaga of 9-4-1997 (AC 1997/1649), Vizcaya of 5-11-1997 (AC 1997/2332), 12 Asturias of 11-12-1998 (AC 1998/2365), Barcelona (AC 2000/1483), of 27-6-2000 (JUR 2000/284377) and of 15-5-2008 (JUR 2008/205078), Valladolid of 10-2-2006 (AC 2006/210) and of 11-7-2007 (JUR 2008/43198), Valencia of 22-2-2006 (AC 2006/1579) and of 20-2-2008 (JUR 2008/166500), Pontevedra of 3-3-2006 (AC 2006/457) and 19-7-2007 (AC 2007/2237), Burgos of 22-5-2006 (JUR 2006/296614), Asturias of 12-6-2006 (AC 2006/1031), La Coruña 23-6-2006 (JUR 2006/220428), Cantabria of 24-1-2008 (JUR 2008/138637), Gerona of 23-7-2008 (AC 2008/2019), Santa Cruz de Tenerife of 13-10-2008 (JUR 2009/52067), Málaga of 5-5-2009 (JUR 2009/421858); as well as that of Alicante of 6-7-2010 (JUR 2010/345551) handed down after the STS 20 January 2010. These judgments uphold the exclusive liability of the organiser of the package, since it is he who assumes the obligation to perform the contract, whether he does so himself or through third parties. On the other hand, the retailer's liability is reserved to him in the specific sphere in which he is involved, which is none other than the selection, marketing and sale of the package, acting as an intermediary between the organiser and the final consumer, provided, of course, that his involvement in the package does not go beyond that sphere. The majority line of case law, on the other hand, defended joint and several liability between the retailer and the organiser. Among them, the SSAP of Vizcaya of 6-4-1998 (AC 1998/5335), Granada of 23-3-1999 (AC 1999/739), Jaén of 25-4-2000 (JUR 2000/192418), Madrid of 28-5-1999 (AC 1999/1301), Asturias of 21-6-1999 (AC 1999/1426); Barcelona of 30-3-2002 (AC 2002/995), of 2-11-2005 (AC 2006/159), of 17-1-2007 (JUR 2007/178160) and of 4-3-2008 (JUR 2008/143523), Zaragoza 1-4-2005 (AC 2005/665), Madrid 18-10-2005 (JUR 2005/252042), of 28-1-2008 (JUR 2008/124457), of 20-5-2008 (JUR 2008/213583) and of 9-6-2010 (JUR 2010/297761), SAP Guipúzcoa (secc. 2ª) 10-2-2006 (JUR 2006/168545), Córdoba of 14-7-2006 (JUR 2007/185574) and of 7-12-2007 (JUR 2008/218714), Asturias of 5-10-2007 (AC 2007/2005), Valencia of 13-11-2007 (AC 2008/1176), Vizcaya of 23-7-2007 (AC 2007/2374), of 8-11-2007 (AC 2008/90) and of 24-1-2008 (JUR 2008/174855), Jaén of 24-3-2008 (JUR 2008/226854), La Rioja of 4-6-2009 (JUR 2009/289993), Álava of 9-6-2009 (JUR 2009/370685) and Palencia of 17-6-2010 (AC 2010/1069).
contained in the fifth final provision of Law 44/2006, of 29 December, so that the work of the regulator was limited to the incorporation and harmonisation of the old text of the LVC with the rest of the rules that the TRLGDCU came to integrate in order to harmonise it. On the contrary, the opportunity was taken to go a step further and to clarify the aspects of the controversial liability of the parties to the package travel contract, which led to its modification, at least for those of us who had supported the thesis of the joint liability of the participating agencies , since, as I have said, this 13 liability changes into a joint and several liability of the various travel agencies involved in the contract, regardless of their status as organiser or retailer (now retailer). This liability is clear from the wording of the second paragraph of article 162.1, which, although equally deficient as its predecessor (article 11 of the LVC) , tended to indicate that "the liability towards the consumer will be 14 joint and several for all the entrepreneurs, whether they are organisers or retailers, jointly involved in the contract, whatever its type and the relations existing between them (...)". The wording of this provision could be defended on the grounds that where at least two travel agencies are involved in the same package travel contract, one of which is the organiser and the other the retailer, both are liable to the consumer for the lack of conformity or breach of contract, even if it is not attributable to them, because this partial or defective performance falls within the scope of management of the other agency or agencies involved in the contract . 15 And although, in my opinion, this solution has distorted the liability that the 1995 legislator intended to impose on these companies in the package travel contract, it has had the positive effect of giving greater legal certainty to Vid. Zubiri De Salinas, 2020 b, p. 176. 13 Thus, I pointed it out in González Cabrera, 2012, p. 119. He also criticises the lack of clarity of the 14 precept Pérez Escolar, 2013, p. 143. On the contrary, he considers it to be a clear precept Martínez Espín, 2012, p. 129. This is the interpretation of most of the doctrine. Vid. Algaba Ros, (2006 a), pp. 245 and f.; Álvarez Rubio, 15 2011, p. 172; Bech Serrat, 2008, p. 64; Boldó Roda, 2001, pp. 758 and ff.; Coll Carreños, 2010, pp. 110 and f.; García López, 2010, p. 45; Gómez Calle, 2011, pp. 529 and f.; Gómez Calle, E. La responsabilidad de los organizadores y detallistas en el contrato de viaje combinado", in Realidades y tendencias del derecho en el siglo XXI: Tomo IV, Temis, Bogotá, 2010, pp. 754 f.; Gómez Lozano, 2013, p. 622; González Cabrera, 2012, p. 119; González Fernández, 2008, p. 1074; Martín Osante, 2009, pp. 1055 f.; Martínez Espín, 2011, p. 150; Moralejo Imbernón, 2009, pp. 1903 ff. and ff.; Pastor Sempere, 2010, pp. 120 and f.; Peñas Moyano, 2011, p. 244; Reyes López, 2012, pp. 431 and ff.; and Rodríguez Achutegui, 2008, p. 22, among others.
commercial traffic, avoiding the discrepancies between the many provincial courts. Obviously, with this wording, the scope of the traveller's protection has been extended so that the traveller can take legal action against any or all of the parties involved, if he so wishes, in order to obtain financial compensation for the damage caused to him in the performance of the contract . It thus 16 followed the line that had been defended by most of the minor jurisprudence, as well as that promoted by part of the doctrine, in favour of the consumer , 17 which was justified in the STS of 20 January 2010, by the extension and quantitative importance of these trips and their impact on the quality of life of the traveller, as well as being in line with the legislator´s obligation to seek the maximum protection of the consumer, in accordance with Articles 51 and 53 of the Spanish Constitution of 1978 . 18 However, the solution adopted by the Supreme Court and contained in article 162.1 of the TRLGDCU worsened the situation of marketing agencies, usually small companies, when they offered, as retailers, trips organised by wholesalers, usually stronger and more solvent agencies. Indeed, in many cases, and because it was easier to sue the seller of the trip, these agencies had to pay compensation to consumers for the acts or omissions of the organising agencies or the service providers selected by them. It is true that these retailers could take action against the organisers in order to recover what they had paid to the consumer, as the rule makes clear, but this satisfaction came after they had already had to compensate the user, causing economic damage to the companies, which, as I have already Coll Carreños, 2010, p. 111, considers that this article is the most "guarantor of the protection that our 16 legal system offers to the consumer, because it does not seem fair to require the creditor, the victim of an injurious act, to make the arduous effort to identify the persons who may be affected by the decision handed down, especially if we consider that the error in the choice of defendants has consequences as frightening as those of acquittal in the first instance, as a result of the estimation, ex officio or at the request of the party, of the lack of passive litisconsortium. Joint and several liability is clear not only from the jurisprudential doctrine followed since 2001 by the SC, 17 but also in its Judgment of 20 January 2010 of unification of doctrine, which expressly states that the current Article 162 of the TRLGDCU clarifies the "joint and several nature of the liability towards the traveller, which the tormented wording of Article 11 (of the LVC) allowed for discussion". Consequently, this ruling establishes the joint and several liability of organisers and retailers in general, going beyond what was contemplated by the legislator, which only provides in Article 11 of the repealed LVC when there is a plurality of responsible parties in the same area of management of the trip, establishing for the rest of the cases, the most common ones, in which an organiser and a retailer concur, a different liability for each one of them. Pérez Escolar, 2013, pp. 148 y s. 18
mentioned, are usually small and medium-sized companies because of their turnover. VI. The coherence of Article 161.1 of the TRLGDCU, following its reform in 2018 As I said, once Directive 2015/2302 (DVC&SVV) had been approved, the Spanish regulator was obliged to transpose it into our national legislation, which it did by means of Royal Decree-Law 23/2018. It must be said that, with this regulation, the regulator is abandoning its conservative character, which was reflected in the transposition of the articles of the Directives into domestic law, so that, instead of reproducing the wording of Article 13 of the aforementioned Directive, it maintains the joint and several liability of the organiser and the retailer towards the consumer. Indeed, the literal wording of the provision states that "[t]he organisers and retailers of package travel shall be jointly and severally liable towards the traveller for the proper performance of the travel services included in the contract, irrespective of whether those services are to be performed by themselves or by other providers". It goes on to say that whoever is liable to the traveller (a broader concept than the consumer) has a right of recourse against whoever is responsible for the 19 defective performance or non-performance of the contract, depending on the scope oh their respective management of the travel. In our opinion, this statement limits the right of recourse only and exclusively to the contract between the organiser and the retailer, with the organiser having the right of recourse against the entrepreneur who, on the basis of the previous agreements, should have duly provided the service, since the organisation of the trip falls within his sphere of management. However, this statement is modulated by the provision contained in the third paragraph, which vaguely recognises the possibility for the organiser or the retailer to bring an action against third parties who have contributed to the damage which gave rise to the compensation, price reduction or other obligations assumed towards the consumer by one of the two operators involved in the package travel contract. How can the two paragraphs be interpreted in a coherent way? In my opinion, in order to reconcile the two paragraphs, the first paragraph must necessarily It opts for a broad concept that includes any traveller regardless of the reason for the package, in any of its 19 combinations, including those made by companies for professional reasons, but it is true that we already had a broader concept of consumer for package travel than that contained in Article 3 of the TRLGDCU.
be interpreted as allowing a right of recourse between the organiser and the retailer and a right of extra-contractual action against third parties. It is clear that the operators who must provide the various services included in the contract, such as carriers, hosts, etc., are not third parties in relation to the organiser who contracts with them, even if one of those operators, as organiser, also provides some of the services and offers the others under the umbrella of the package in some of the various ways that the concept of such a package is now recognised. The organiser will have to take action against them within the framework of his own contract (charter, contingent, etc.), but may also take action against a third party outside his sphere who has contributed to the defective performance or breach of contract. On the other hand, the retailer may bring an action in tort against any party other than the organiser (articles 1902 et seq. of the Civil Code). In addition to transposing the VCD and the VSTSVV by including the organiser as the party liable for the package, as provided for in Art. 13. 1 of this regulation, it also includes the liability of the retailer, thus, as I have argued, following the position it has held since 2007, when, beyond its competence, it substantially modified the liability of package tour operators, thereby achieving greater uniformity in doctrine and jurisprudence and contributing to the improvement of legal certainty for consumers and tour operators. However, following the example of the DVC&SVV, which allows Member States to extend liability to retailers, it also specifies what retailers are liable for, thus making it easier to determine the scope of each retailer's management. To this end, the regulation reflects, by way of example, the retailer's liability for errors in the booking (Art. 152 TRLGDCU), precontractual information (Art. 153 TRLGDCU), the conclusion of the contract and the documents to be provided to the traveller (Art. 155 TRLGDCU), the duty of assistance (Art. 163 TRLGDCU) and the guarantee against insolvency (Art. 164 TRLGDCU). VII. The inconsistency in the regulator's position with the change made to article 161.1 of the TRLGDCU in 2022 The situation regarding the liability of operators in the organisation, marketing and execution of package travel is finally clear, but the reform of Article 161.1 of the TRLGDCU by Law 4/2022 of 25 February on the protection of consumers and users in situations of social and economic vulnerability is paradoxical. The reform of Article 161.1 of the TRLGDCU
by Law 4/2022, of 25 February, on the Protection of Consumers and Users in Situations of Social and Economic Vulnerability is paradoxical without there being any reason to justify such an amendment, especially in view of its transcendence, as I had already anticipated that it definitively rectifies the position that has been followed with regard to the liability of package tour operators since the repealed LVC of 1995. The wording of the current Article 161.1 is as follows : 20 "Organisers and retailers of package travel shall be liable to the traveller for the proper performance of the travel services included in the contract in accordance with the obligations incumbent on them due to their scope of management of the package, regardless of whether these services are to be performed by themselves or by other providers. Notwithstanding the above, the traveller may address claims for nonfulfilment or defective fulfilment of the services that make up the package, indistinctly to the organisers or retailers, who are obliged to inform the traveller of the existing liability regime, process the claim directly or through referral to whoever corresponds according to the scope of management, as well as to inform the traveller of the progress of the claim, even if it is outside their scope of management. The retailer's failure to handle the complaint will mean that he will be jointly and severally liable with the organiser vis-à-vis the traveller for the correct fulfilment of the obligations of the package that correspond to the organiser due to his scope of management. Likewise, the organiser's failure to handle the complaint shall mean that he shall be jointly and severally liable with the retailer vis-à-vis the traveller for the proper fulfilment of the package travel obligations incumbent on the retailer under his scope of management. (....)". At first sight, it might appear that there is no difference between this article 161.1 and its predecessor, since both establish the liability of organisers and retailers for non-conformity or non-performance in the execution of the services that make up the package. However, the fundamental difference between the two is the specific omission of the reference to the joint and several liability of the two operators, which had been maintained since the incorporation of the LVC into the TRLGDCU in 2007, as well as in its reform of 2018. I reproduce only those aspects that are of interest for the purposes of this paper. 20
This omission is not, in my opinion, an oversight or an omission without consequences. On the contrary, if we follow the literal wording of the text, it follows that the joint and several liability between the organiser and the retailer continues to exist, although it is limited to both of them, as we shall see, by not passing on the complaint or claim made by the customer to the party actually responsible, according to the scope of its management. This failure to comply with an express obligation ex lege has the adverse effect of aggravating their situation, making them jointly and severally liable with the other party for both the lack of conformity and the breach of contract, whereas in other cases the liability of both operators remains limited to their own sphere. Faced with this new reality, the question must be asked: why such a radical change, given the cost to legal certainty in transport of establishing the joint and several liability of both operators? A change that could also lead to a 21 reduction in consumer protection. In order to try to find answers, given that there is no argument to justify this amendment in the explanatory memorandum of Law 4/2022 of 25 February on the Protection of Consumers and Users in Situations of Social and Economic Vulnerability, it is necessary to look at the parliamentary procedure. Analysis shows that this provision was not included in the draft Law on the Protection of Consumers and Users in Situations of Social and Economic Vulnerability (from Royal Decree Law 1/2021 of 19 January), published in the Official Gazette of the Spanish Parliament on 12 February 2021. Nor in the text of the amendments to the bill, published in the Official Gazette of the Spanish Parliament on 2 November 2021, which only refers to the amendment of the TRLGDCU in relation to package travel and package travel services, in order to point out that the transposition of the DVC&SVV missed the opportunity to include attention to vulnerable consumers in the recast text, despite the fact that in recent years there has been an increase in the online contracting of these tourist services and despite the fact that the European Commission has expressly recognised the increase in unfair commercial practices, especially in the context of the pandemic, which should lead the regulator to improve the effective protection of consumers. Is this warning from the Commission the reason why the change of responsibility was introduced in the text of the bill on the protection of As we have seen above, remember the doctrinal debate and the discrepancy in the minor case law with the 21 interpretation of Article 11 of the LVC, its modification by Article 162 of the TRLGDCU in 2008, exceeding the competence of the regulator and the maintenance of this joint and several liability, even with the transposition of the DVC&SVV in 2018.
consumers and users in situations of social and economic vulnerability, which was approved by the committee with full legislative powers? . 22 It is difficult to give an answer without fear of error, but it seems plausible that this could be one of the reasons, since the amendment to article 161.1, as well as others related to package travel, appear in the text of the aforementioned bill , without its explanatory memorandum, nor that of the 23 finally approved bill, justifying this amendment. Moreover, some of these specific changes in Book IV of the TRLGDCU can be understood in terms of the coherence to which the text as a whole must respond. In particular, the strengthening of prior information and the specific defence of vulnerable consumers are in line with this, but they do not explain the significant and, one could say, even radical change made to article 161.1 of the TRLGDCU, which, by avoiding the joint and several liability of both operators vis-à-vis the consumer, seems to contradict this specific protection of the traveller. Certainly, the changes proposed in the bill, which have been definitively incorporated into Law 4/2022 of 25 February on the Protection of Consumers and Users in Situations of Social and Economic Vulnerability, concerning the regulation of package travel, and which have been incorporated into the TRLGDCU, are the following: Article 150(2)(b) is amended by adding the words "without repetition in the same year" to emphasise the occasional or non-habitual nature of the activity and to replace the previous wording, which alludes to the fact that these trips are aimed at a limited group of travellers, that they are restricted to members of the organisation that organises them and that they are not promoted using advertising media, since these elements are more typical of a commercial activity. The text thus reads as follows "Package travel and related travel services offered on an occasional basis, without repetition in the same year and not for profit, provided that they are aimed solely at the members of the entity that organises them and not at the general public and that no advertising media are used for their promotion and that they are not generally known" . Article 151.1(k) refers to the concept of non-conformity, which is 24 not different from that provided for in the 2018 reform, in which this Published in the Official Gazette of the Spanish Parliament on 30 December 2021. 22 Page 8: "Finally, a new paragraph is added to Article 72, Article 80(b), Article 99(1), Article 127(2), Article 23 150(2), Article 151(1)(k), Article 153(3), Article 160(3), first subparagraph, and Article 161(1) are amended". Underlining is my own. 24
amendment was incorporated. Article 153.3, for its part, improves the text on how the information must be provided to the user, so that, in addition to providing this information in Spanish, in a clear and comprehensible manner, and if it is also in writing, the text must be legible. It also introduces the possibility of providing it in another official language of the place where the contract is concluded, at the request of the parties, and therefore reads as follows "The information referred to in paragraphs 1 and 2 shall be provided to the traveller at least in Spanish and, if necessary, at the request of either party, in any other official language of the place where the contract is concluded, in a clear, comprehensible and conspicuous form and, if provided in writing, in a legible form. The above reforms reflect an improvement in consumer protection, but it does not appear that the amendment of Art. 161. 1 of the TRLGDCU, when it omits that the organiser and the retailer are jointly and severally liable to the traveller for the proper performance of the travel services, and also specifies that both are liable for the proper performance of the travel services included in the contract, in accordance with the obligations which they have by virtue of their management of the package, irrespective of whether these services are to be provided by themselves or by other service providers, the latter aspect being the exclusive responsibility of the organiser, since the liability is limited to the extent of its own management and the performance of the travel exceeds that of the retailer. However, the provision itself continues, in its second section, to state that the traveller may address his claims, in an ambiguous manner, to the organiser or the retailer, who are obliged to inform the traveller of the liability regime in force, to deal with the claim directly if it falls within the scope of their management, or to pass it on to the party responsible if it does not, and to inform the traveller of the progress of the claim. Only the lack of handling of this complaint by the organiser, who receives it directly from the consumer, makes him jointly and severally liable with his coresponsible party in the contract (organiser or retailer), this liability being extinguished if he handles the complaint properly and keeps the traveller informed . 25 However, it is impossible to overlook the fact that this radical change in the responsibilities of tour operators towards the consumer has been incorporated into a specific consumer protection regulation: Law 4/2022 of Article 161.1 of the TRLGDCU: "(...) In these cases, the retailer or organiser shall bear the burden of 25 proof that he has acted diligently in handling the complaint and, in any case, that he has initiated the handling of the complaint immediately upon receipt. (...).
25 February on the Protection of Consumers and Users in Situations of Social and Economic Vulnerability. This law justifies its approval in the necessary adaptation of Spanish legislation to the provisions set out by the European Commission in the New Consumer Agenda of 13 November 2020, which recognises the need for greater protection for consumers and, above all, for vulnerable consumers, a variable concept of a non-permanent nature, as consumers may be vulnerable with regard to certain consumer relations and not with regard to others and which, in general, includes not only economic factors, generally includes not only economic factors but also other factors such as "age, sex, national or ethnic origin, place of origin, people with allergies or food intolerances, victims of gender-based violence, single-parent families, the unemployed, people with any kind of disability, the sick, ethnic or linguistic minorities, people temporarily displaced from their habitual residence, migrants or people seeking international protection, as well as people in economic need or at risk of exclusion, or any other circumstance that may have a negative impact on their consumer relations” (MS). Now, in contrast to this broad protection for a large part of the population in their consumer relations, the new wording of Art. 161. 1 of the TRLGDCU, since it is more favourable to the interests of the operators than to those of the consumers themselves, without the preamble of the regulation giving a proper explanation for this, since the preamble does not require any adaptation to the new concept of the vulnerable consumer that would correspond to or lead to a significant modification of the current liability of the tour operator, especially when this tends to be less protective than its predecessor. From the above it can be concluded that this latest amendment does not respond to a clear improvement in consumer protection, so what is the reason for it? In my opinion, it is a strategy that balances the interests of the various parties, especially after the serious problems that organisers and, above all, retailers, as well as transport companies - especially air transport - have had to face with the paralysis of travel during the lockdown and de-escalation across Europe . 26 Thus, while the consumer's protection is initially reduced, since he is prevented from taking direct action against the retailer to hold him liable for In fact, the CNMC, in its report on the preliminary draft law amending the consolidated text of the 26 General Law for the Defence of Consumers and Users and other ancillary laws (File No. IPN/CNMC/ 027/21), p. 16, welcomes it when it states: "From the point of view of competition, this modification of the guarantee system is considered appropriate because it could encourage suppliers to offer their services in package holidays, with the consequent benefit for consumers, who will have greater choice. In other words, the relaxation of the conditions for access to the package travel market may facilitate the participation of a certain profile of operators who have not previously provided services in the package travel market.
the failure of others to comply with the contract, which is the responsibility of the organiser, it is also provided that the organiser's lack of diligence makes him jointly and severally liable with the retailer for any failure to comply with the contract: his own, that of others or that of a third party, without prejudice to the right of recourse . 27 In fact, the regulator clearly and explicitly opts for a delimitation of liability limited to the specific obligations assumed in the package travel contract (what is traditionally known as joint liability ), but allows the organiser and 28 the retailer to be jointly and severally liable if, once the complaint has been lodged by the traveller, it is not duly dealt with or the traveller is not kept informed of the progress of the complaint. This joint and several liability will therefore be subsidiary and will apply only if the organiser fails to comply with one of the obligations imposed by the regulation: failing to deal properly with or inform the traveller of the complaints submitted to it, which fall within the scope of the management of the other organiser of the package . 29 However, it may be that the possible reduction in the protection of the traveller resulting from the limitation of the liability of the package tour organiser could have the practical consequence of not reducing that protection, since it would oblige both organisers to comply as far as possible with the ultimate obligation to deal with complaints and claims to whomsoever they may be addressed, in order to give the traveller timely satisfaction after the dissatisfaction that may have been caused by the improper performance of the contract. The legal consequence of failing to comply with this obligation is the assumption of joint and several liability with the employer with whom the contract with the traveller is shared, without Article 161.1 of the TRLGDCU: "(...) Whoever is jointly and severally liable to the traveller for the lack of 27 management of the claim shall have the right of recourse against the organiser or retailer to whom the breach or defective performance of the contract is attributable according to their respective scope of management of the package. Where an organiser or retailer pays compensation, according to his area of management, grants a price reduction or fulfils other obligations under this Act, he may seek compensation from third parties who have contributed to the occurrence of the event giving rise to the compensation, price reduction or fulfilment of other obligations". According to Gómez Calle, 2011, p. 518, it has been erroneously called joint liability, because strictly 28 speaking this is "the one in which the duty of performance must be fulfilled jointly by a plurality of debtors" when the truth is that here it is a question of delimiting the "responsibilities between organiser and retailer according to a certain criterion". This is expressly stated by the CNMC, (File No IPN/CNMC/027/21), op. cit., p. 17, "It is recommended 29 to inform the traveller about which part of the package is managed by each provider, as well as about the possibility of complaining to only one of the organisers or retailers, but also to complain to each and every one of the providers for their area of management".tourismlaw.pt