Rogers&coPackage Travel Directive 1990 – Implementation In Spain

Here, David Diez Ramos of Rogers & Co (ITLN Member for Spain), discusses how the original Package Travel Directive was implemented by the Spanish authorities.

EC Directive 90/314 was originally implemented into Spanish law via the Law of Combined Travel 21/1995 which was subsequently replaced in 2007 by the Law of General Defence of Consumers and Users (GDCU).

In accordance with the GDCU the contract of combined travel is now regulated by Book IV and specifically Articles 150 to 165 and the rules relevant to the liability of operators and retailers can be found at Articles 158, 159, 161 and 162.

In general terms, Articles 158, 159 and 161 of the GDCU copy almost word for word in translation the text of the EC Directive Article 4 paras 5, 6 and 7.  And Article 162 does the same with the EC Directive Article 5.

The main differences between the EC Directive and the GDCU in relation to liability, can be summarised as follows:

  • GDCU Article 159 stipulates the levels of compensation to be paid in the event of breach of contract as referred to in Article 5, para 6 and those sums are:
  • 5% of the total purchase price for the combined travel if the breach occurs between the 2 months and 15 days immediately prior to the date of the scheduled travel;
  • 10% of the total purchase price for the combined travel if the breach occurs between 15 and 3 days immediately prior to the date of the scheduled travel, and
  • 25% of the total purchase price for the combined travel if the breach occurs 48 hours immediately prior to the date of the scheduled travel.
  • GDCU Article 162 makes the operators and retailers liable for the correct performance of the contract irrespective of whether they rely on third party service providers, but their liability is determined by the obligations that correspond to each one depending on their respective roles in the contract.  In any event, the operator and retailer are jointly and severally liable to the consumer and maintain their respective rights to pursue a recovery from the third party service providers.
  • GDCU Article 162 provides a fourth category of exoneration from liability not otherwise provided for in the EC Directive Article 5, para 2, whereby the liability of the operator/retailer is not engaged where the defect in the performance of the contract is due to an event that the operator or where relevant, the retailer, irrespective of their best efforts and due diligence, have been unable to foresee or overcome.
  • Lastly, it is important to highlight that the GDCU Article 160 contains a specific set of rules relating to the liability of the consumer for breach of contract not otherwise included in the EC Directive.

As with all Members States, Spain is awaiting word on how the new Directive will be implemented and what differences there will be between the current regime and the forthcoming one.

David Diez Ramos

DD@RogersCo.ES

Editor’s Note –Readers will note that Spain went further than many member states by actually providing a set percentage level of compensation when there is a breach of contract, something which seems entirely sensible and gives both consumers and businesses some certainty in those situations.