Sustainable Tourism Law

A NEW DRAFT REGULATION OF PACKAGE TRAVELS IN SPAIN 553 This financial guarantee also had to cover the compensation for repatriation expenses in the event of insolvency. This situation was supposed to happen when the travel agency declared its bankruptcy, once the travel package contract had been concluded, while it is under execution and must be interrupted for that reason. The reference made to the repatriation expenses implied that the guarantee covering them would only be executed when transportation had been included within the travel package. This financial guarantee would also cover those cases in which the consumer had to face different kinds of payments to the providers of end services, as a consequence of the insolvency of the organizer or the purchaser of the travel package. In particular, these may include the need to pay for the hotel rooms or for the transportation tickets to go back to their point of departure. The financial guarantee needed a final judicial decision to be enforceable. This decision had to state clearly the obligation of organizers and retailers to respond economically to the consumers’ claims. It may also be enforceable as a consequence of a consumer arbitration award when the parties had voluntarily and in advance decided to submit their claims to such dispute resolution scheme 27 . Nevertheless, in our opinion, this financial guarantee would not be enforceable to those reparations considered by the package travels regulation with the aim of compensating consumers 28 . Among other reparations, the compensation would not extend to the damages for the breach or for the defective performance of the travel contract 29 . Along with this duty to establish and keep the financial guarantee, travel agencies also have to contract civil liability insurance to face their own business risks. Such insurance shall cover both their direct and indirect civil liability, as well as the liability for primary property damages. Article 12 of the Spanish Act on Travel packages concluded by considering that when the financial guarantee was enforced, it had to be replaced up to its initial amount within fifteen days. 27 These requirements for the execution of the guarantee were directly established by the Ministry Order of 1988, regulating travel agencies. 28 GÓMEZ LOZANO, M.ª M. and GONZÁLEZ CABRERA, I., “La garantía de la responsabilidad contractual de las agencias …”, Op. cit. 29 Nevertheless, this opinion was not generally shared in the literature. There were also voices considering that this article 12 of the Spanish Act on Package Travels considered two different situations. First, to respond for the fulfillment of the duties arising from the provision of the services; and, second, for the situations of insolvency. See, VICENT CHULIÁ, F., “La cobertura de la responsabilidad contractual de las agencias de viaje en los contratos de viajes combinados, in Derecho y Turismo , (Coord. Aurioles Martín, A.), Consejería de Turismo y Deporte de la Junta de Andalucía, Sevilla, 1999, p. 291.