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".
RkJQdWJsaXNoZXIy MTE4NzM5Nw==