Collective Commentary about the New Package Travel Directive

ARTICLE 13 | ANTONIA PANIZA FULLANA 307 responsibility that can be assigned to the travel agency against which the suit is brought on behalf of two passengers for defects in the provision of the travel package, the regime of responsibility of travel agencies for damages caused to travellers being established in article 11 of Act 21/1995 of 6 July regulating travel packages, by means of which internal Spanish legislation is adapted to Directive 90/314/EEC, of the Council, and where a tendency in case law is observed towards affirming the joint and several liability of all parties involved in providing the tourist service (organisers, retailers and direct providers of the various services that form the travel arrangement). […]. The key precept on this matter is the aforementioned article 11 of the Package Travel Act, which in its first section states that “organisers and retailers of travel packages shall be responsible to the consumer according to their obligations due to the respective scope of their management of the package, the correct performance of the obligations resulting from the contract, irrespective of whether said obligations are to be performed by themselves or by other service providers, the right of the organisers and retailers notwithstanding to act against said service providers”. And such a projection is completed with an affirmation, the interpretation of which has resulted in being the origin of said contradictory case law, in indicating that “liability will be joint and several when different organisers or retailers jointly enter into the contract, whatever their class and the relationships that exist between them”. Accordingly, it was discussed whether liability between organiser and retailer should be joint and several or not; there were decisions that ruled on individual responsibility depending on the scope of management of each one, interpreting that the retailer was carrying out the functions of a commissioner. As this ruling stated: “ Such deficient regulation has not enabled the controversy to be settled over the joint or joint and several nature of the liability of the agencies that organise the travel package and those that simply offer it for sale. Now, faced with a minority line of case law, which defends attributing responsibility to the agencies involved ‘based on the obligations applicable due to the respective scope of their management of the package’, of which those of the retailer are as a commissioner (ruling of the Provincial Court (SAP) of Burgos Sec 2 of 17 May 2002; SAP Barcelona Sec 17 of 12 December 2002; SAP Seville Sec 8 of 20 January 2003; SAP Ciudad Real Sec 1 of 2 June 2003; SAP Lleida Sec 2 of 8 November 2005; SAP Valladolid Sec 1 of 10 February 2006; SAP Pontevedra Sec 3 of 3 March 2006),…” other decisions ruled on the side of joint and several liability: “…the contrary interpretation remains and has been consolidated further, the currently majority line of case law, rejecting any distribution of liability, defends the existence of a joint and several liability between organisers and retailers as regards the total or partial non-performance of the travel package, even when the deficient performance in question were attributable to the