Collective Commentary about the New Package Travel Directive

402 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE 3. The duty to provide insurance in cases of the organiser’s insolvency under the Spanish regulation 44 In the case of Spanish regulation 45 , article 164 of the Royal Legislative Decree 1/2007, of 16 December, approving the consolidated text of the General Act for the Defense of Consumers and Users and other complementary acts, in a version amended by the transposition of the Directive in Spain that considered that the insurance may be constituted by the creation of a guarantee fond, the contract of insurance, an endorsement or any other financial guarantee, in the terms determined by the relevant administration. In this point we have to consider that the relevant administration in the case of Spain is the Autonomous Community where the organiser of the travel package has its registered office. These communities would be the ones determining in a precise way the content that such a security, as considered in the national regulation, must provide 46 . The Communities that have already proceeded to regulate the form and amount of such a guarantee have also used the criteria of requiring that it covers, at least, a certain percentage of the organiser’s turnover. The late transposition of the Directive into the Spanish legal system – in December 2018 – led to several Autonomous Communities adapting this request by the European regulation prior to the approval of the new national regulation on travel packages and linked travels arrangements. Under the umbrella of the national regulation contained in article 164 of the consolidated text implementing the General Act for the Protection of Consumers and Users, and the distribution of competences recognized under the Spanish Constitution, the majority of the regions have tried to make the relevant regulation in each one of them as homogeneous as possible. Undoubtedly, this successful solution by the autonomous legislators has led to a more significant legal security for the consumer of travel packages. At the same time, this allows companies to exercise their activity in the entire national 44 To perform this analysis we have taken into account five different Autonomous Communities: Andalucía, Baleares Islands, Canary Islands, Catalonia and Madrid, as analyzing the regulation of the seventeen regions would have exceed the scope of this essay. 45 See under Portuguese regulation, articles 37 and ff. of the Decree Act no. 17/2018. 46 On these issues, see BENAVIDES VELASCO, P., (2018), “A new draft regulation of package travels in Spain”, in Sustainable Tourism Law, (Ed. V. Franceschelli, F. Morandi and C. Torres), Esthe/Inatel/Alentejo, Estoril, Portugal, pp. 541 ff. and BENAVIDES VELASCO, P., (2018), “La obligación de las agencias de viaje de prestar las garantías contempladas en la Directiva de viajes combinados”, International Journal of Scientific Management and Tourism , Vol. 4, no. 2, pp. 92 ff.