Intrusiveness in the travel agency activity

In the present article I will deal with a very topical subject, - not because it has arisen now in these times -, but by reason of these more difficult circumstances of loss of employment by the measures that have had to be taken for the fight against the COVID19, and that there is no choice but to try to get ahead with what now has been called for some time as entrepreneurship. Added to this is the fact that the confinement by the Covid19 has given a great impulse to the use of on line means that facilitate to a greater extent the tourist mediation, which can lead to carry out in practice to those who are not, the activity of travel agency.

We must not lose sight of the fact that the travel agency activity is regulated, so that the undertaking in the travel agency sector without complying with the necessary requirements implies professional intrusive behavior. 

Thus, such practice involves a high risk in the market as it brings consequences to the detriment of, on the one hand, the rights and guarantees of the consumer, on the other hand, of competition in the market, which is qualified as unfair against legal agencies; and, finally, it involves an infringement of public order in terms of not complying with the legal obligations established in the legal regulations regarding the exclusivity held by travel agencies in the organization and sale of package tours.

It is certain that the necessity of entrepreneurship before described, is translated in the great temptation very rooted in the roguish idiosyncrasy of our country of realizing, in this case, the activity of travel agency by those who are not legally inscribed in the corresponding existing Registries to the effect in each one of the autonomous communities, nor, of course, complying with the rest of the obligations that by law must assume the honest travel agents as I can emphasize the obligatory insurances of Civil Responsibility (in almost all the communities), nor to have the guarantee against insolvency in favor of the consumers, nor to be taxed according to the corresponding regime of VAT, etc? I will not go on.

The non-compliance with these obligations places the consumer in a situation of evident risk by contracting without the due guarantees. Then, this non-compliance with respect to travel agencies means that they act in a situation of unfair competition, and finally, the competent tourism administration is obliged to carry out inspection, investigation and sanctioning work, which translates into an investment of resources in the investigation and prosecution of this type of intrusive activity, being able to allocate these resources to other types of actions such as, for example, promoting national tourism.

The damage caused to the market by this type of activity in our country is enormous.

In short, we are talking about a sector whose services are generally aimed at final consumers of package tours with destinations mostly abroad, which obviously must be provided with the greatest guarantees, and of course with the professionalism of the agents who are recognized as such with their public registration in the tourism registers of each community.

In our country, the regulation of the travel agency activity is delegated to each of the autonomous communities that have issued the corresponding legislation, which in turn has been modified to adapt to European regulations, and its transposition to national regulations.

As you know there are 17 autonomous communities, normally each one of them with 17 norms with the rank of Law that regulates the management of tourism in its territory (except for some exceptions), and with 17 Regulations that regulate in depth the activity of travel agency. I am not going to analyze and explain to you the 34 norms, but only in a general and common way, and I will try not to do it in a very legal way.

I have chosen, as an example, basically the regulation of the Community of Madrid, but it could well be of any other community, which in general are very similar in this issue of professional intrusion.

I begin by stating that tourism companies are defined as all those that, by means of a price and in a professional and habitual manner, either on a permanent or temporary basis, provide services in the field of tourism. Within the tourism companies are those of intermediation, to which travel agencies belong.

And what are travel agencies? Well, travel agencies are companies that, having submitted a responsible declaration to the General Directorate responsible for tourism, are professionally and commercially engaged in the exercise of mediation activities and/or organization of tourist services, being able to use their own means in the provision of the same, and must be in possession of the corresponding title-license, that is, in Madrid the CICMA (Madrid Community Identification Code, e.g. in the Balearic Islands is the CIBAL, in Castilla y León is the CICL, etc.).

In addition, I must remind you that the activity of mediation and organization of tourist services considered as package tours are the exclusive competence of travel agencies.

That said, and consequently, the offer, performance or advertising by any means of dissemination of the commercial activities of the travel agencies without being in possession of the corresponding title-license, will be sanctioned administratively, initiating the corresponding file ex officio or at the request of a party.

Consequently, it is considered as very serious infringements the offer, provision of services and the performance of activities without having submitted the responsible declaration required by the tourism regulations, establishing the penalty of a fine in an amount between 30,001 and 300,000 euros.

On the other hand, we cannot fail to make reference to the new technologies, and the online sale of package tours, - and consequently the performance of the travel agency activity -, that in addition to all the regulations and obligations indicated above, it must additionally comply with the specific regulations of Law 34/2002 of July 11, 2002, on services of the information society and electronic commerce.

Finally, what actions can we take in case of detecting a professional intruder in our sector?

The main issue is to collect all kinds of evidence of the intruder's actions in the travel agency market, such as obtaining the advertising they use (brochures, offers, promotions, advertising posters, etc.), as well as printouts on paper of the offers published on the Internet, for example.

The question is to articulate and properly substantiate the possible complaint to the corresponding authorities, for which I suggest you to go to your trusted law firm so that the complaint is well founded, and allows the administration to initiate the sanctioning file against the intruder.

The actions that can be taken, and to which administration should be addressed will depend on each specific situation, hence my recommendation to go to a lawyer who will direct the matter well, because you can use several channels, such as a complaint to the Directorate General of Tourism in each community where the intruder activity develops, or file a complaint before the authorities of each community in the corresponding Service of Defense of the competition, and/or exercise the corresponding actions before the civil courts for unfair competition, or even, if it is some type of swindle or swindle, before the criminal jurisdiction, choice that will depend on each concrete case.

However, in any case, it must be argued and supported by the strongest evidence you can find.

José Luis Valencia (Lawyer T&L)