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I. Origins of the divorce

WHY A DIVORCE BETWEEN DISTANCE CONTRACTS IN EU LAW AND THE TOURISM INDUSTRY? IFTTA Europe Workshop, Palma de Mallorca, 1-3 April, 2009 Dr. Josep M. Bech Serrat Associate Professor of Civil Law. Tourism School. University of Girona (Catalonia, Spain) (josepm.bech@udg.edu).

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I. Origins of the divorce

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  1. WHY A DIVORCE BETWEEN DISTANCE CONTRACTS IN EU LAW AND THE TOURISM INDUSTRY?IFTTA Europe Workshop, Palma de Mallorca, 1-3 April, 2009 Dr. Josep M. BechSerratAssociate Professor of Civil Law. Tourism School. University of Girona (Catalonia, Spain) (josepm.bech@udg.edu)

  2. I. Origins of the divorce • Art. 20 (3) of the proposal for a Directive on consumer rights of 8 October 2008: an extension of the trend initiated by art. 3 (2) of the Distance Contracts Directive. • Vertical regulation (i.e. the Package Travel Directive and the Timeshare, Long-Term Holiday Product, Resale and Exchange Contracts of 14 January 2009) does not take into consideration any distance communication means. • The final outline edition of the Common Frame of Reference (CFR) published in February 2009: academics maintain the divorce.

  3. II. Impact of the divorce • Information requirements in contracts where the supplier and the consumer are not dealing face to face are excluded. However, such an issue form an essential part of various European consumer law directives applicable to situations that place the consumer at a significant informational disadvantage (the Electronic Commerce Directive, the Package Travel Directive, the new Timeshare Directive). • Tourists will become vulnerable in very common situations (e.g. a hotel room booking by phone) and the adaptation of the information requirements to the technical constraints of certain media (e.g. restrictions of the number of characters on certain mobile telephone screens) provided by the proposal for a Directive on consumer rights (Recital 21; Art. 11 para. 2) will not be applicable to tourism. • Exclusion of a right of withdrawal. A risk of tourists being treated unfairly and being unprotected from making rash decisions. There are other ways to protect the consumer in tourism (e.g. right of withdrawal in Art. 6 of the new Timeshare Directive) but there are some gaps whereby protection is not given.

  4. III. Justifying the divorce • The “empty chair” syndrome: the case EasyCar v. Office of Fair Trading, Recital 36 of the proposal for a Directive on consumer rights and an uncritical approach of the CFR • Some criticism: 1) Such a position is exclusively linked to the possible impact of a right of withdrawal on the service provider, so that information requirements should not be affected ; and 2) Such a position does not take into consideration the dynamic of a frequently used right of withdrawal in the tourism industry and there is a need for a broader examination. Particularly, cancellation clauses are very common in the tourism industry and they have even been incorporated into some European Members regulations (e.g. Art. 160 of the Spanish Royal Legislative Decree of 16 November 2007 on consumer protection)

  5. IV. A proposal of overcoming the divorce • A need of a proportionality test for determining the extension of the exclusion: the dynamic of tourism services shows that most service providers are not vulnerable if a particular right of withdrawal for distance contracts is introduced. • The application of all of EU Law protection in cases governed by cancellation fees would be a proportionate response and this should be considered in any future regulation (the proposal for a Directive on consumer rights, the revision of the Package Travel Directive, amongst other norms)

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