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Help and advice for consumers in Europe

Directive 2015/2302/EU – in force since 1st July 2018 – introduced a new regime for tourist packages and their ancillary services combined with the purpose of warranting greater and stricter protection including for those who try out new sales channels for organising holidays. It equates, in fact, the rights of travellers who resort to traditional travel agents to organise their trips to those who use online platforms. In Italy the new rules were introduced by Legislative Decree No. 62 of 21 May 2018.

The new regulations cover various type of travel package. A travel package is, in fact, described in the event of booking at least two different types of tourism services for a single holiday, as, for example, a flight and accommodation from a single vendor and through a single contract. The booking of several tourism services from different vendors and through separate contracts is deemed a tourism package on condition that takes place at a single point of sale, like a call centre or a website and the choice of services is made before proceeding to payment. These, however, are not the only kinds of tourist packages covered by the new rules, which also include the booking of two or more tourism services at a fixed price or two or more tourist services advertised as a package. Lastly, the booking of tourism services for a period of less than 24 hours duration is also deemed to be a tourist package, if amongst the services, overnight accommodation is included, as well as the well-known package in which the traveller is given the possibility of choosing between a selection of tourist services.

This concerns reservations online of tourism services (flights, accommodation, car hire etc …) made at various points of sale in which the first service provider transmits the name, e-mail address and payment details of the consumer to the second service provider with whom the consumer enters a second service provider contract within 24 hours of the first. If the client’s details are not transmitted by one service provider to another, the reservations are deemed associated tourist services.

By associated tourist services, on the other hand, are meant those tourist services booked by different agents under different contracts but associated with one another. They are defined as associated when an agent books successive services, proposing, for example, the booking of a second tourist service for the same trip or holiday via the sending of a link.  In addition, we can speak of associated services in the case of selection and separate payment for each tourist service is made at a single sales point or when specifically seeking an additional tourist service from another agent on condition that it takes place within 24 hours of the confirmation of the booking of the first tourist service. The rights applicable to tourist packages are not applicable to travellers who acquire associated tourist services, except for the protection in the event of the insolvency or bankruptcy of the agent who effected the booking of such services.

One of the key points of the Directive concerns the right of the traveller to be properly informed about the contract by the organiser or vendor before the signing of the contract concerning all the contractual stipulations such as: destination(s), dates for the journey, number of nights included, accommodation details, transport supplied with the relevant timetable, meals provided, visits and excursions included in the price of the package, details of the organiser and vendor, size of the group (in cases of group travel) and the minimum number of participants, service language, documents required and insurance, information concerning passengers with reduced mobility, total overall price including taxes and means of payment, information on the cancellation of the contract and voluntary or compulsory subscription of an insurance policy. This information forms an integral part of the contract of which a copy must be handed to the traveller or via a durable medium. The contract must record the details of the local representative to whom one can turn for help, the person responsible for reimbursing the passenger and/or repatriating him/her in the event of the insolvency of the organiser, the claim procedure in the event of non-conformity of the package as well as any organisms to approach for alternative dispute resolution.

The rules also provide much protection both for before and after departure. For example, any increases in the price are only permitted in the contract provides for this possibility and if they depend on the cost of fuel or other energy sources, on taxes or increase of tariffs imposed by third parties or on exchange rates. Moreover, increases in price must be notified at least 20 days before the commencement of the package. In the greater number of cases, the increases are restricted to 8% and should the price increase more than this number, the traveller has the right – before the package commences – to accept this change, accept a replacement package (of equal or greater value) or to cancel the contract, and obtain full reimbursement within 14 days. In the event of decrease thereof, on the other hand, the organiser has the right to subtract administrative and management expenses from the effective amounts due to the consumer and is bound to provide proof thereof.

In the event that the traveller is not able to use the package for personal reasons, he/she may cede same to another person provided that the latter satisfies all the conditions to be able to use the services, and that the cession is notified to the organiser at least 7 days before departure. The traveller who cedes the package to the other party who thus acquires it shall be jointly liable to pay the balance and the additional costs which might result from the cession.

If, prior to departure, the organiser or the intermediary are required to make material changes to one or more elements of the contract, they are required to inform the consumer in writing immediately, detailing the type of changes and any consequent variation in the price. In these circumstances, if the traveller has the option of accepting the changes or resiling from the contract, without payment of penalties, this will be notified by the organiser or intermediary within the timeframes for this indicated in the notification of amendment. If the traveller terminates the contract, he/she has the right to receive a full refund within 14 days.

As regards execution of the contract, the organiser of the package is responsible for arranging the tourist services stipulated in the contract, as well as those services to be provided by other persons. Even in these instances, termination and refunds are permitted. From the time that tourist services as stipulated in the contract are not provided, the organiser must find a solution, unless this is impossible, or the costs are disproportionate. The organiser must find alternative solutions even in circumstances where only a part of the agreed tourist services is provided. In other words, where the organiser has failed to provide a remedy and, in circumstances where the tourist services do not represent the characteristics set out in the contract, the consumer has a right to a reduction in the price or to termination of the contract as well as compensation for patrimonial damages as well as for non-patrimonial damages incurred, for example, for a ruined holiday.

The new regulation recognises the traveller’s right to withdraw from the contract at any time and before commencement of the tourist package; however, the exercise of this right is not without costs in as much as the traveller is required to reimburse the organiser for costs incurred provided these are appropriate and justifiable. It is also possible for the organiser to make provision in the contract for standard withdrawal costs depending on the time of withdrawal from the package. For tourist packages purchased off-premises, for example online, the traveller may withdraw without payment of any type of penalty within 5 days of the purchase without being required to provide any justification for reconsidering same. This opportunity is excluded where the package is sold at a price significantly less than current prices.

A special case may arise when it is established that events not depending on the organiser or the vendor, nor the traveller occur that does not allow him/her to participate in the pre-booked trip, such as, for example, terrorist attacks, natural disasters, other safety problems. In these circumstances, the traveller has a right to receive a full refund but does not have a right to claim additional damages. Payment of compensation is also excluded where the organiser has withdrawn from the contract but for well-founded reasons such as the inability to reach the minimum number of persons subscribed for the package.

Tourist packages must be covered by an insurance policy or bank guarantee to ensure the refund of payments made, the offer of a substitute package or the continuation of a package already begun so that the traveller can be repatriated from abroad in the event of the insolvency or bankruptcy of the vendor or organiser. The relative costs must be borne by the organiser/vendor and the extent of cover must be indicated in the tourism package contract.

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