Collective Commentary about the New Package Travel Directive

ARTICLE 13 | ANTONIA PANIZA FULLANA 309 The ruling of the Provincial Court of Palencia of 17 June 2010 also refers to the liability of organisers and retailers and to the different positions on the nature of this liability: “... The question relating to the liability of wholesale agencies and retailers, resulting from non-performance in travel services of the kind dealt with here, was resolved with the enactment of the Act alluded to up to 2007, by that Act, yet it is true that it led to contradictory resolutions, a contradiction that was ultimately resolved by the case law of the Supreme Court, in the same sense as the ruling now being examined” 3 . And Legislative Royal Decree 1/2007 refers to the arguments for defending joint and several liability, despite not yet being applicable, which are: 3 This Ruling refers to the provisions established in Directive 90/314/EEC of 13 June relating to package travel services: “1. Member States shall take the necessary steps to ensure that the organizer and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organizer and/or retailer or by other suppliers of services without prejudice to the right of the organizer and/or retailer to pursue those other suppliers of services. 2. With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organiser and/or retailer is/are liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to that of another supplier of services, because: – The failures which occur in the performance of the contract are attributable to the consumer. – Such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable. – Such failures are due to a case of force majeure such as that defined in Article 14 (6), second subparagraph (i), or to an event which the organiser and/or retailer or the supplier of services, even with all due care, could not foresee or forestall”. As can be seen, the Directive in question did not establish whether liability should be joint or joint and several between wholesalers and retailers, but rather gave Member States the freedom to establish this when making the transposition, but what the Directive did want to do was protect consumers. Given this situation, the solution that the different Member States of the EC gave to the question being dealt with here was diverse and consequently different, and in Spain, Act 21/95 of 6 July, which applies to the case, but repealed by Legislative Royal Decree 1/07 of 16 November 2007, established in article 11 that: “1. The 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. 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. 2. Organisers and retailers of packages will also be liable for damages suffered by the consumer as a consequence of the non-performance or deficient performance of the contract”. This article has been interpreted in diverse ways, even though eventually the prevailing consideration was that liability is joint and several between wholesalers and retailers. This is due to the doubts that arose from the fact that section 1 of the article transcribed states that organisers and retailers would be liable to the consumer “depending on their obligations due to their respective scope of how the package is managed, the correct performance of the obligations resulting from the contract”, and said doubts were sidestepped by Legislative Royal Decree 1/07 of 16 November, enacting the consolidated text of the Consumer Protection Act and other complementary legislation, repealing the act applicable to this case, and in article 162 of which states, having indicated that organisers and retailers will be liable to the consumer and user depending on their obligations resulting from their respective scopes of management..., that “the responsibility 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”, thus clarifying the type of liability of both wholesalers and retailers, which caused so many doubts due to the interpretation of article 11 of Act 21/95”.