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

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).

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