Rethinking the liability of package tour operators in Spain by Inmaculada G. Cabrera PRE-PRINT of International Journal of Tourism, Travel and Hospitality Law

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.

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