Sustainable Tourism Law

552 SUSTAINABLE TOURISM LAW The European Court of Justice has analysed the scope and enforceability of such security 22 , considering that both the consumers and the market benefit from it against situations of insolvency of the organizer 23 . This security may be enforced in any event of insolvency of the company, even in those cases in which the insolvency is considered fraudulent as a consequence of the acting of the organizer 24 . The Directive was drafted by the European legislator as a minimum harmonizationmeasure and it allowed theMember States to adopt stricter measures in their national regulations to protect consumers. The norm was later transposed into the Spanish regulation by means of the Act 21/1995, on Travel Packages. This act had a mixed content, as it included both the provisions of the administrative regulation on the protection that travel agencies had to offer, as well as the provisions of the Directive for insolvency situations, without expanding the requirements to the extent considered by the European rule about these guarantees 25 . Article 12 of this Spanish Law on Package Travel stated that organisers and retailers must establish and support a financial guarantee. It was left to the administrative authorities with competences on tourism to define the concrete determination of the means that such guarantees should adopt regarding the requirements they had to fulfil. In particular -and strictly in my opinion–, this guarantee had to be enough to cover the reimbursement of the funds that the contracting parties had deposited before the execution of the travel. In fact, when the consumer had already started the travel and enjoyed some of the contracted services, their price had to be discounted from the final amount that they were entitled to receive. In this latter case, consumers still had the possibility to file an action for the defective performance of the contract, to make a claim to the agency for moral damages, according to the content of articles 10 and 11 of the Spanish Law on Package Travels 26 . 22 On the decisions of the European Court of Justice implementing the Directive, see TORRES CAZORLA, M.ª I. and BENAVIDES VELASCO, P., “La incidencia de la Normativa Comunitaria en materia turística en el Ordenamiento Jurídico español”, Veinticinco años de impacto del Derecho comunitario en el Derecho español , (Dir. Molina del Pozo, C.), Liceus, Madrid, 2010 so as TORRES CAZORLA, M.ª I., “La normativa comunitaria en materia turística y su aplicación por el Tribunal de Justicia Comunitario”, Revista Andaluza de Derecho del Turismo , núm. 4, 2010. 23 European Court of Justice Judgment of 16 February 2012, Case C-134/11. 24 European Court of Justice Judgment of 15 June 1999, Case C-140/97. 25 GÓMEZ LOZANO, M.ª M. and GONZÁLEZ CABRERA, I., “La garantía de la responsabilidad contractual de las agencias de viajes en concurso”, Revista de Derecho Concursal y Paraconcursal , núm. 13, 2010. 26 MARTÍN OSANTE, J.M., “Información, contenido y modificación de los contratos de servicios turísticos”, Diario La Ley , no. 7315, 7 January 2010, Ref. D-5 (LA LEY 17996/2009) so as “Contrato de viaje combinado: resolución y responsabilidades”, Revista de Derecho Mercantil , no. 273, 2009 (BIB 2009/8534).