New developments in Directive (EU) 2015/2302 the European Parliament and of the Council of 25 November 2015 on package travel and linked travel services.

To date, and according to the current regulations, travel agencies are those companies - natural and legal persons - that, in possession of the corresponding title-license, are dedicated, professionally and commercially, exclusively, to the exercise of activities of mediation and/or organization of tourist services, being able to use their own means in the provision of the same.the legal condition and the denomination of travel agency is reserved exclusively to the referred companies. The terms "trip" or "trips" can only be used, as all or part of the title or subtitle that labels its activities, by those who have the legal condition of travel agency.In this way, the organization and sale of the so-called package tours, defined in Article 1 of Law 21/1995, of July 6, 1995, regulating Package Travel, or regulations that replace it (today RD 1/20017), which are classified as i) Wholesale agencies are those that plan, elaborate and organize all kinds of services to be offered to retail agencies, not being able to offer their products directly to the user or consumer, among others. ii) retail agencies are those that either market the product of the wholesale agencies, selling it directly to the user or consumer, or design, prepare, organize and/or sell all kinds of services directly to the user, and may not offer their products to other agencies, and iii) wholesale-retail agencies are those that may combine the activities mentioned in the two preceding paragraphs.Until now, as we have said, the above was generally applicable to all the Autonomous Communities, with their particularities, although with the enactment of the Directive on Freedom to provide services, Directive 2006/123, entitled "Freedom of establishment of service providers", and Package Travel Directive 2015/2302, the regulations will be modified.The new directive involves the establishment of an appropriate balance between a high level of protection for European consumers and users and the competitiveness of entrepreneurs, as well as the consolidation of an internal market aimed at strengthening legal certainty, eliminating the existing disparities in European legislation on package travel contracts that create significant obstacles in the internal market.Thus, it amends art. 163 RD 1/2007 establishing a guarantee of contractual liability. In this way, the organizers and retailers of package tours are required to establish and maintain a permanent guarantee in the terms determined by the competent tourism administration, in order to respond in general terms for the fulfillment of the obligations derived from the provision of their services towards the contractors of a package tour and, especially, in case of insolvency, for the effective reimbursement of all the payments made by the travelers insofar as the corresponding services have not been performed and, in the event that transportation is included, for the effective repatriation of the same.Thus, as soon as it becomes apparent that the performance of the package is affected by the lack of liquidity of the organizers or retailers, insofar as the travel is not performed or is partially performed or the service providers require the travelers to pay for them, the traveler can easily access the guaranteed protection, without excessive formalities, without any undue delay and free of charge.Following the publication of Directive (EU) 2015/2302 the European Parliament and the Council of 25 November 2015 on package travel and linked travel services, the Secretary of State for Tourism has drawn up a draft containing regulations adapted to the Directive which it has passed on to the various autonomous regions. Said regulation must be approved no later than January 1, 2018, entering into force as of July 1, 2018.In this way, we can indicate that the "necessary" objective of the draft bill is the amendment of the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws, in order to incorporate into domestic law the Directive (EU) 2015/2302 to provide greater coverage and consumer protection that is aimed at:- Strengthening legal certainty, both for consumers and entrepreneurs.-. Contribute to the elimination of existing disparities in European legislation on contracts concluded between businesses and consumers that create significant obstacles in the internal market.- Raise the level of protection of the rights of consumers and users, in relation to, among others, the following aspects:

• The scope of application of the standard is extended to cover different forms of package tours and related travel services.
• The information to be provided to travelers is expanded.
• Some of the rights of consumers and users regarding the formalization of contracts and the requirement of a guarantee in the event of insolvency are regulated, with different scopes.
• It establishes a liability regime that is stricter in the case of package tours and another system for linked travel services.
• Mutual recognition of insolvency protection granted under the law of another Member State is provided for.

In order to adapt the definition of package travel to the evolution experienced by the market in recent years, the law broadens the scope of this concept on the basis of objective criteria that mostly refer to the manner in which the services are presented or acquired, thus accommodating many travel products that were either legally undefined or not clearly covered by the previous regulation.In particular, in addition to the traditional pre-established package tours, it also includes the combination of travel services at the request of the traveler or according to the selection made by the traveler, regardless of whether the booking is made in person or online.Furthermore, the scope of the law also includes linked travel services, where the role played by entrepreneurs is to facilitate travelers, in person or online, in the procurement of travel services, leading them to conclude contracts with different providers, including through connected booking processes.In order to better differentiate "package tours" from "linked travel services", the law provides that as long as data concerning the name, payment details and e-mail address of the traveler are transferred between service providers and a second contract is concluded within 24 hours after the first service was confirmed in its booking, it must be considered as a "package tour", Finally, organizers and retailers will be required to provide a guarantee to generally guarantee the performance of the obligations arising from the provision of their services and especially for the reimbursement of advance payments and the repatriation of travelers in the event of their insolvency.If it is impossible to guarantee the return of the traveler as agreed in the contract due to unavoidable and extraordinary circumstances, the organizer or, as the case may be, the retailer will assume the cost of the necessary accommodation, if possible of equivalent category, for a period not exceeding three nights per traveler.In short, the new law entails a strengthening of the pre-contractual information (Article 153) to the traveler, as well as new information obligations to be assumed by the entrepreneurs, referring specifically to the language or languages in which the activities included in the package will be carried out (Article 153.1.a).7), the provisions applicable to insolvency protection (Article 164), the possibility of taking out insurance to cover the costs of cancellation by the traveler or assistance, including repatriation costs, in the event of accident or illness (Article 153.1.h), as well as the adaptation of the trip to the needs of persons with reduced mobility (Article 153.1.a).8a). Likewise, with regard to information on fees, expenses and other additional costs, it is established that in the event that such information is not provided prior to the conclusion of the contract, the traveler will not have to bear such fees, expenses or costs (Article 154.2). The greater requirement of information to the consumer on his rights and obligations is also reflected in the regulation of the content and form of the package travel contract as well as in the documents to be delivered prior to the commencement of the trip (Article 155).

José Luis Valencia (Lawyer T&L)