Sustainable Tourism Law

A NEW DRAFT REGULATION OF PACKAGE TRAVELS IN SPAIN 557 The same clarifying goal and the improvement of the legislative technique can be seen in the provision, as it expressly considers that when the travel package includes transportation, such guarantee must also cover repatriation expenses. What is completely innovative is the suppression of the requirement that the financial guarantees established by the travel agencies had to be executed within the framework of a judicial decision or after an arbitration award, if it had been agreed by the contracting parties. The reform abolishes these requirements, stating that as soon as it becomes apparent that the execution of the travel package may be affected by the lack of liquidity of the organizers or retailers, travellers may be entitled to the guaranteed protection, inasmuch as the travel has not been executed, has been partially accomplished or when the providers of services request the payments to the travellers. Such guarantees must be enforceable without undue burdens, delays and free of charge. Under the current regulation, the activation of the guarantee does not depend on the conclusion of a long and costly judicial or arbitrary proceeding. This measure must be welcomed. However, the norm in force does not consider which authority is entitled to consider the lack of liquidity of the travel agency. Neither does the rule consider how the consumer may access to this guarantee, despite the statement that it must be provided in a fast, easy and free of charge way. In our opinion, to get that protection consumers may appeal to the relevant tourism administration, as determined by the autonomous regulations. More problematic is determining which authority is entitled to consider the insolvency situation of the travel agency. In Spain, the declaration of an insolvency situation must be made by the Commercial Court. But if we keep this rule, the suppression of the requirement made in the previous binding judicial decision loses its effect, as the consumer will have to wait, at least, until the Judge declares the opening of the insolvency proceedings 36 . Among the improvements introduced in the regulation, it is of particular interest the requirement that this guarantee be aligned with the provisions of the Act 20/2013, of 9 th December, on the guarantee to market unity 37 . The Preamble to this act requires Autonomous Communities and Local Entities to take all the needed legal actions to grant market unity, allowing competition and investment. To do that, public administrations must observe the principles considered in that act, in particular in those administrative acts and regulations with impact 36 BENAVIDES VELASCO, P., “La obligación de las agencias de viaje de prestar las garantías contempladas…”, Op. cit. 37 Act 20/2013, of 9th December, on the guarantee to market unity, BOE no. 295, of 10th December.