Collective Commentary about the New Package Travel Directive

308 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE organiser insofar as the final author of the corresponding service provision is concerned (SAP Pontevedra, Sec 2 of 18 March 2003; SAP Guipúzcoa, Sec 3 of 8 March 2005; SAP Alava, Sec 2 of 20 October 2006; SAP Asturias, Sec 1 of 5 October 2007; rulings of the Provincial Court (SSAP) Vizcaya, Sec 4 of 5 July 2005, Sec 3 of 23 May 2007; SSAP Barcelona, Sec 19 of 30 June 2004, Sec 14 of 11 November 2005; SSAP Valencia Sec 7 of 24 May 2004, Sec 8 of 15 March 2005; SSAP Las Palmas Sec 4 of 14 October 2002, Sec 3 of 4 July 2007; SSAP Zaragoza Sec 5 of 22 July 2003, Sec 2 of 1 April 2005; SSAP Balearic Islands Sec. 5 of 3 March 2005, Sec 3 of 4 December 2007; SSAP Seville Sec 2 of 14 April 2005, Sec 8 of 31 January 2008; SSAP Madrid Sec 10 of 27 June 2005; Sec 14 of 7 November 2006; Sec 21 of 27 February 2007; Sec 28 of 2 April 2008; Sec 9 of 28 April 2008)”. The Supreme Court had also delivered judgement on the distribution of liability between wholesale agencies and retailers, and it did so it was in favour of joint and several liability (Supreme Court Judgement, 23 July 2001): “In the judgment of the High Court, retail travel agencies do not act in trade activity as commissioners of wholesale organisers of travel packages. The existing legal relationship between the retail agency and the user is the result of a contract of sale, in which the travel agency would act as seller, on their own behalf, of products created by the agency or by a third-party wholesale agency. Such an interpretation is judicially based on the legal description of the activity that the retail agencies carry out on the market as a ‘marketing’ activity, and on the impossibility of classing the activity of operating as an intermediary developed by retail agencies in this type of trade activity as a commission, as there is no true agreement of wills, as the brokerage in this scope is the result of a legal regulation imposed by reason of the prohibition on wholesalers to offer their products for sale directly to the consumer. It has also delivered judgement subsequently on other rulings concerning the joint and several liability of the organiser and retailer to the client (Supreme Court Judgement, 21 March 2006). In any case, this case law, certainly excessively protective of the interests of the traveller, this Court holds that it is preferable to the other that continues to hold ground on criteria of personal and subjective attribution of responsibility”. It was article 129 of Legislative Royal Decree 1/2007 of 16 November, enacting the Consolidated Text of the Consumer and User Protection Act, and other complementary legislation, that seemed to settle the question by establishing that: “liability to the consumer will be joint and several insofar as traders, whether organisers or retailers, jointly share in the contract whatever its type and the relations between them, notwithstanding the right of recovery of who responds to the consumer and user in terms of to whom the non-performance or defective performance of the contract is attributable based on the respective scope of their management of the travel package”.