Collective Commentary about the New Package Travel Directive

310 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE “a) The regulations on consumer and user protection generally establish joint and several liability when there are several persons who must be answerable for damages caused to a consumer. For example, article 27.2 of the Consumer Protection Act, and article 7 of Act 22/94 of 6 July on civil liability for damages caused by defective products. b) Consumer trust focuses on the person or company concluding the contract, which is the retailer and hardly ever the wholesaler, so it is logical for the retailer to be liable to the consumer, who in any case may repeat claims against the wholesaler. c) The purpose of the transcribed European Directive is consumer protection, and curiously in the directives that establish special regulations for certain contracts, except in the case of Travel Packages, it establishes the express guarantee of joint and several liability for the consumer. d) By establishing the types of travel agencies and activities that they carry out within the sector that they regulate, Article 3 paragraph 2 of the Order dated 14 April 1988 classes the retail agency as ‘that which either markets the product of wholesale agencies by directly selling to the user or consumer, or which plans, creates, organises and/or sells all types of tourist services and packages directly to the user, being unable to offer its products for sale to other agencies’. Such a definition does not allow a mandate to exist between wholesaler and retailer or agency, as given the above retailers directly sell to the user or consumer products created by the wholesale agencies, which, in accordance with the stated article 3 paragraph 1, cannot offer their products for sale to the user or consumer. It concludes, then, that activity of retail agencies operating as an intermediary derives from a legal regulation, but not from a commission contract between the principal, the wholesaler and the minority agency. Thus, the relationship between the retailer and the user is the result of a contract of sale, in which the agency acts as seller of products created by the agency or by a third- -party wholesale agency, and acts on its own behalf. e) The responsibility of the retailer to the wholesaler is also ultimately derived from the fact that the retailer has profited from the price paid by and received from the user”. The key lies in the classification of the relationships between wholesale agency and retailer, as stated by the ruling of the Provincial Court of Castellón of 21 July 2008: “... The Supreme Court has also delivered judgement on the distribution of responsibility between wholesale agencies and retailers, and it did so it was in favour of joint and several responsibility (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