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Holidays and Travel

This section contains:


Introduction


Holiday and time share sales regulation


Package Travel regulations

Air travel

  Air Travel Organisers' Licensing
  EU rights of compensation for boarding denial, delayed and cancelled flights


Sea Travel

   EU rights for maritime passengers

 

Introduction

This section deals with the regulation of certain holiday and time share facilities, holiday packages and air and sea travel services. The regulations are largely based on EU legislation.

This section is not intended to cover the general regulation of operators of air or sea transport.

Holiday and Time Share sales regulation

Introduction
Sales of timeshares, timeshare exchange systems and long-term holiday products are regulated under the Timeshare, Holiday Products, Resale and Exchange Contracts Regulations 2010 (2010 No 2960) (in force on 23rd February 2011) implement Directive 2008/122/EC of the European Parliament and of the Council on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (OJ No L 33, 3.2.2009 p 10) (“the Directive”).

Products covered


* Timeshare contract: is a contract between a trader and a consumer under which the consumer, for consideration, acquires the right to use overnight accommodation for more than one period of occupation, and which has a duration of more than one year, or contains provision allowing for the contract to be renewed or extended so that it has a duration of more than one year.
* Long-term holiday product contract: is a contract between a trader and a consumer the main effect of which is that the consumer, for consideration, acquires the right to obtain discounts or other benefits in respect of accommodation, and  which has a duration of more than one year, or contains provision allowing for the contract to be renewed or extended so that it has a duration of more than one year,
* Resale contract: is a contract between a trader and a consumer under which the trader, for consideration, assists the consumer in buying or selling rights under a timeshare contract or under a long-term holiday product contract.
* Exchange contract: is a contract between a consumer who is also party to a timeshare contract, and a trader under which the consumer, for consideration, joins a timeshare exchange system. A “timeshare exchange system” is a system which allows a consumer access to overnight accommodation or other services in exchange for giving other persons temporary access to the benefits deriving from the consumer's timeshare contract.

Advertising and marketing: part 3 of the regulations set out the requirements that must be complied with before a trader enters into a regulated contract with a consumer. This includes requirements relating to advertising and marketing and the information that must be provided to the consumer in good time before the contract is entered into.

Regulated contract: Part 4 of the regulations sets out requirements relating to the regulated contract, including obligations to draw the attention of the consumer to matters relating to the right to withdrawal and the prohibition on advance consideration.

The Department for Business, Innovation and Skills has published a guide for business entitled [“The Timeshare, Holiday Products, Resale and Exchange Regulations 2010 - A Guide for Business

Package travel regulations


The marketing and selling of package holidays is regulated by the Package Travel, Package Holidays and Package Tours Regulations 1992 (1992 No. 3288) (as amended) (PTR).
A DTI leaflet offers guidance by way of FAQs on the scope of the regulations.

The regulations implement in the UK Council Directive 90/314/EEC on package travel, package holidays, and package tours (OJ No. L158, 13 June 1990, p.59).

The regulations control the sale and performance of packages sold or offered for sale in the UK.

What is a 'package holiday'?

Packages are defined as the pre-arranged combination of at least two of the following components when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:

(a) transport;

(b) accommodation;

(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package,

The submission of separate accounts for different components does not prevent the arrangements from being a package;

The fact that a combination is arranged at the request of the consumer and in accordance with his specific instructions (whether modified or not) does not of itself stop the package from being treated as ' pre-arranged'.

To whom do the Package Travel Regulations apply?

The PTR apply to the:

* organiser”: i.e. the person who, otherwise than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer;

* 'retailer': i.e. the person who sells or offers for sale the package put together by the organiser.

Requirements of the Package Travel Regulations

The principal requirements of the PTR include the following.

Brochure and information

Descriptive matter relating to packages: no organiser or retailer may supply to a consumer any descriptive matter concerning a package, the price of a package or any other conditions applying to the contract which contains any misleading information.


Requirements as to brochures

Organisers: an organiser must make available a brochure to a possible consumer which indicates in a legible, comprehensible and accurate manner the price and adequate information about the specified matters in respect of the packages offered for sale in the brochure to the extent that those matters are relevant to the packages so offered.

List of specified matters:

1.The destination and the means, characteristics and categories of transport used.

2.The type of accommodation, its location, category or degree of comfort and its main features and, where the accommodation is to be provided in a member State, its approval or tourist classification under the rules of that member State.

3.The meals which are included in the package.

4.The itinerary.

5.General information about passport and visa requirements which apply for [nationals of the member State or States in which the brochure is made available] and health formalities required for the journey and the stay.

6.Either the monetary amount or the percentage of the price which is to be paid on account and the timetable for payment of the balance.

7.Whether a minimum number of persons is required for the package to take place and, if so, the deadline for informing the consumer in the event of cancellation.

8.The arrangements (if any) which apply if consumers are delayed at the outward or homeward points of departure.

9.The arrangements for security for money paid over and for the repatriation of the consumer in the event of insolvency.

Retailers: a retailer must not make available to a possible consumer a brochure which he knows or has reasonable cause to believe does not comply with the above requirements.


Circumstances in which particulars in brochure are to be binding

The particulars in the package brochure relating to the specified items above are treated as terms of the package contract. There are three exceptions:

*  in relation to information required to be included by virtue of item 9 of the specified items;

* where the brochure contains an express statement that changes may be made in the particulars contained in it before a contract is concluded and changes in the particulars so contained are clearly communicated to the consumer before a contract is concluded;

* when the consumer and the other party to the contract agree after the contract has been made that the particulars in the brochure, or some of those particulars, should not form part of the contract.


Information to be provided before contract is concluded

Before a contract is concluded, the retailer or organiser must provide the intending consumer with the information specified below in writing or in some other appropriate form:

(a) general information about passport and visa requirements which apply to nationals of the EU member State or States concerned who purchase the package in question, including information about the length of time it is likely to take to obtain the appropriate passports and visas;

(b) information about health formalities required for the journey and the stay; and

(c) the arrangements for security for the money paid over and (where applicable) for the repatriation of the consumer in the event of insolvency.


Information to be provided in good time

The retailer or organiser (provider) must provide the consumer with the information specified below in writing or in some other appropriate form in good time before the start of the journey:

(a) the times and places of intermediate stops and transport connections and particulars of the place to be occupied by the traveller (for example, cabin or berth on ship, sleeper compartment on train);

(b) the name, address and telephone number of the representative or agency of the provider in the locality where the consumer is to stay, or if none a telephone number or other information which will enable the consumer to contact the provider during the stay; and

(c) in the case of a journey or stay abroad by a child under the age of 16 on the day when the journey or stay is due to start, information enabling direct contact to be made with the child or the person responsible at the place where he is to stay; and

(d) information about an insurance policy which the consumer may, if he wishes, take out in respect of the risk of those costs being incurred; there is an exception where the consumer is required as a term of the contract to take out an insurance policy in order to cover the cost of cancellation by the consumer or the cost of assistance, including repatriation, in the event of accident or illness.

Contract for the package

The provider must ensure with regard to the contract for the supply of the package:

(a) Depending on the nature of the package being purchased, the contract contains at least the specified elements:

* The travel destination(s) and, where periods of stay are involved, the relevant periods, with dates;

* The means, characteristics and categories of transport to be used and the dates, times and points of departure and return;

* Where the package includes accommodation, its location, its tourist category or degree of comfort, its main features and, where the accommodation is to be provided in a member State, its compliance with the rules of that member State;

* The meals which are included in the package;

* Whether a minimum number of persons is required for the package to take place and, if so, the deadline for informing the consumer in the event of cancellation;

* Visits, excursions or other services which are included in the total price agreed for the package;

* The name and address of the organiser, the retailer and, where appropriate, the insurer;

* The price of the package, if the price may be revised in accordance with the term which may be included in the contract, an indication of the possibility of such price revisions, and an indication of any dues, taxes or fees chargeable for certain services (landing, embarkation or disembarkation fees at ports and airports and tourist taxes) where such costs are not included in the package [but note the restrictions on price revision in paragraph (d) below];

* The payment schedule and method of payment;

* Special requirements which the consumer has communicated to the organiser or retailer when making the booking and which both have accepted;

* The periods within which the consumer must make any complaint about the failure to perform or the inadequate performance of the contract.

(b) All the terms of the contract are set out in writing or such other form as is comprehensible and accessible to the consumer and are communicated to the consumer before the contract is made; this does not apply when the interval between the time when the consumer approaches the provider with a view to entering into a contract and the time of departure under the proposed contract is so short that it is impracticable to comply with the requirements.

(c) It is an implied term that where the consumer is prevented from proceeding with the package, the consumer may transfer his booking to a person who satisfies all the conditions applicable to the package. To exercise this right, the consumer must give 'reasonable notice' to the provider of his intention to transfer before the date when departure is due to take place. If the consumer exercises this right, both he and and the transferee are 'jointly and severally' liable to the provider for payment of the price of the package and for any additional costs arising from such transfer.

(d) Any term in a contract to the effect that the prices laid down in the contract may be revised is void and unenforceable unless the contract provides for the possibility of upward or downward revision and satisfies the following conditions:

- the contract states precisely how the revised price is to be calculated;

- the contract provides that price revisions are to be made solely to allow for variations in  transportation costs, including the cost of fuel, dues, taxes or fees chargeable for services such as landing taxes or embarkation or disembarkation fees at ports and airports, or the exchange rates applied to the particular package; and

Price increases: notwithstanding any terms of a contract:

(i) no price increase may be made in a specified period which may not be less than 30 days before the departure date stipulated; and

(ii) as against an individual consumer liable under the contract, no price increase may be made in respect of variations which would produce an increase of less than 2 per cent, or such greater percentage as the contract may specify, (“non-eligible variations”) and that the non-eligible variations shall be left out of account in the calculation.

(e) A written copy of these terms is supplied to the consumer.

Package contract must comply with PTR

The PTR provide that it is an implied condition of the contract for the supply of the package that it will comply with the above requirements. This means in effect that if the contract does not comply, the consumer is entitled to rescind or cancel the contract or, if that is no longer practicable, to damages instead.

Organiser and retailer strictly liable

The organiser and/or retailer are strictly liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be provided by that other party or by other suppliers of services.

Travel insurance discrimination: A travel agent may not make any extra charge for a foreign package holiday where the customer does not buy travel insurance from the agent. The same applies to tour operators who are part of a group including a travel agent.
(The Foreign Package Holidays (Tour Operators and Travel Agents) Order 2001).

Reform of the Package travel regulations

On 25 November 2015 the the new Package Travel Directive (2015/2302/EU) was adopted, bringing it up to date with the developments in the travel market.

The new Directive entered into force on 31 December 2015. The Member States have to transpose it by 1 January 2018 and it will be applicable from 1 July 2018. The rules will extend protection of the 1990 EU Package Travel Directive beyond traditional package holidays organised by tour operators, but will also give clear protection to 120 million consumers who book other forms of combined travel, e.g. a combination of a flight plus hotel or car rental put together on a website. Such combinations will be protected as package, in particular where the travel services are advertised as a package, are booked within the same booking process or where they are offered or charged at a total or inclusive price.

The new Directive applies to 3 different sorts of travel combinations:

* pre-arranged packages - ready-made holidays from a tour operator made up of at least 2 elements: transport, accommodation or other services, e.g. car rental;

* customised packages - selection of components for the same trip or holiday by the traveller and bought from a single business online or offline;

* linked travel arrangements – looser combinations of travel services, for instance if the traveller, after having booked one travel service on one website, is invited to book another service through a targeted link or similar and the second booking is made within 24 hours. In such cases the traveller has to be informed that he/she is not being offered a package, but that, under certain conditions, his pre-payments will be protected.

UK implementation of reforms

In October 2016, the UK Government published a consultation document 'Modernising consumer protection in the package travel sector: Consultation on ATOL changes'.

The consultation is part of the Government's programme of reform for the Air Travel Organisers' Licencing (ATOL) scheme.

Enforcement

Civil enforcement: iIf an organiser or retailer is in breach of the obligation not to include misleading information in descriptive matter, he isl be liable to compensate the consumer for any loss which the consumer suffers in consequence.

Criminal enforcement: an organiser or retailer who contravenes the brochure information or pre-contract information requirements or pre-travel information requirements are guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale, and on conviction on indictment to an [unlimited] fine.

Air Travel  Organisers' Licensing

New “ATOL” regulations came into effect on 30 April 2012 regarding the sale of flight travel with or without accommodation (Civil Aviation (Air Travel Organisers’ Licensing) Regulations 2012 (S.I. 2012 No. 1017) which revoke and replace the Civil Aviation (Air Travel Organisers’ Licensing) Regulations 1995, as amended).

The Civil Aviation Authority has issued an explanatory guide for travel agents Improving Holiday Protection

The main changes effected by the new regulations are summarised below:
* An Air Travel Organiser’s Licence (ATOL) must be held by anyone in the UK (other than an aircraft operator) who makes available flight accommodation, unless they are exempt, e.g. agents of an ATOL holder and airline ticket agents.
* An ATOL must be held by anyone in the UK who arranges a “Flight-Plus” package, i.e. to arrange and sell flights with accommodation and/or car hire if the accommodation or car hire elements are booked at the same time as (or within 24 hours of booking the flight) under the same contract or related to it.
* An ATOL Certificate must be supplied when accepting payment for every ATOL protected holiday.
* Agency Agreements: all ATOL holders must have written agreements with their agents.


EU rights of compensation for boarding denial, delayed and cancelled flights

Air passengers travelling from an EU airport or from a non-EU airport into the EU by an EU carrier have certain rights to compensation from the carrier in the event of dened boarding, delays or cancellation of a flight (Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights). A carrier may be excused from paying compensation in a case of cancellation if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

What's new items

23/02/2018 Consultation on updating ATOL consumer protection

Source: GOV.UK

This consultation invites views on the Government's proposals to update the regulations which govern the Air Travel Organisers' Licencing (ATOL) scheme. It marks the final stage of consultation on the implementation of a new EU Package Travel Directive (PTD 2015), following the previous consultations on modernising ATOL (“the ATOL consultation of 2016”) published November 2016, and on updating consumer protection in the package travel sector (“the PTR consultation of 2017”) published August 2017.

The Government published in February 2017 its intent to proceed with the proposals to align the ATOL scheme with the broadened scope of the PTD 2015. The process started with the enactment of the Air Travel Organiser’s Licence Act in November 2017. The Department for Business Energy and Industrial Strategy (BEIS) has also consulted on the overarching proposals to update the Package Travel Regulations 1992 in line with PTD 2015.

The consultation seeks views on the proposed changes to the ATOL regulations to transpose the provisions of the PTD 2015. It complements the changes BEIS are implementing through the Package Travel Regulations 1992. The proposals will make it easier for UK businesses to trade across Europe without needing to comply with insolvency protection requirements in each member state.

The consultation period began on 23 February 2018 and will run until 23 March 2018.

 

19/01/2017: Travel company liable for contaminated food and drink on all-inclusive holiday

Wood and another v TUI Travel plc (trading as First Choice)

Number: [2017] EWCA Civ 11

The claimants (Mr and Mrs Wood) purchased an all-inclusive holiday in the Dominican Republic including hotel accommodation from the defendant travel company. They suffered acute gastroenteritis on the holiday and brought a claim for damages under an implied condition in s 4(2) of the Supply of Goods and Services Act 1982 (the 1982 Act) that where property in goods was transferred pursuant to a contract in the course of business, the goods had to be of 'satisfactory quality'. The consequences of the illness were serious and not transitory.

Comment: this case was decided on the Supply of Goods and Services act 1982 rather than the Package Travel Regulations.

19/06/2014: Thomson Airways lose appeal on time limit for flight delay claim
http://www.bailii.org/ew/cases/EWCA/Civ/2014/845.html

James Dawson v Thomson Airways Limited
[2014] EWCA Civ 845   Hearing date  13th & 14th May 2014

This case arose out of a delay to a flight from Gatwick to the Dominican Republic in December 2006. The claimant was awarded judgment in the Cambridge County Court judgment against Thomson Airways Ltd ("the airline"), in the sum of £1,488.73.

The Court of Appeal dismissed the airline’s appeal.

12/06/2014: Airline loses appeal on EU right to compensation for delay
http://www.bailii.org/ew/cases/EWCA/Civ/2014/791.html

Jet2.com Ltd v Huzar [2014] EWCA Civ 791

The Court of Appeal has ruled on a compensation claim brought by a passenger against Jet2.com Ltd after a 27 hour delay to a flight from Manchester to Malaga in October 2011. due to an unexpected technical fault..

The court ruled that the carrier was not entitled to benefit from the 'extraordinary circumstances' exception even though the technical fault was unexpected and could not have been predicted by a regular system of inspection or maintenance, and was therefore unforeseen and unforeseeable.

Comment: the carrier has announced it will appeal to the Supreme Court. Subject to any appeal, the ruling establishes a binding legal precedent which could open a 'floodgate' to many other claims for flight delays which were previously rejected on the basis of 'extraordinary circumstances'.


01/02/2013: Ryanair loses EU compensation case
McDonagh v Ryanair Ltd
In an Irish case arising out of a cancelled flight on Ryanair from Faro to Dublin, the ECJ has ruled that the EU Regulation No 261/2004 (compensation for denied boarding, delays and cancellation) requires air carriers to provide assistance to passengers in the event of flight cancellations, even if due to the closure of air space, whatever the cause. A carrier is however not obliged to pay compensation if it can prove that the cancellation is caused by ‘extraordinary circumstances’ which could not have been avoided even if all reasonable measures had been taken.


27/11/2012: ECJt rules on time limit for cancelled flight claim
More v Koninklijke Luchtvaart Maatschappij NV C-139/11
In the case of a claim for compensation for a cancelled flight under EU Regulation (EC) 261/2004 (establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights) (the Regulation), the European Court of Justice has ruled that the time limit for making the claim is not the two-year period specified in Article 29


23/10/2012: ECJ rules compensation payable in delayed flight cases
Nelson and others v Deutsche Lufthansa AG
R, on the application of TUI Travel plc and others v Civil Aviation Authority

In cases referred by the  Amtsgericht in Germany and the High Court in England, the ECJ ruled that EU Regulation (EC) No 261/2004 (compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights) must be interpreted as meaning that passengers whose flights are delayed are entitled to compensation under that regulation where they suffer, on account of such flights, a loss of time equal to or in excess of three hours. Such a delay does not, however, entitle passengers to compensation if the air carrier can prove that the long delay is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken, namely circumstances beyond the actual control of the air carrier.


11/10/2012: ECJ upholds air passengers’ rights in denied boarding cases
The European Court of Justice (ECJ) has recently made two rulings in denied boarding cases where the airlines concerned refused compensation to the passengers.

EU rights for maritime passengers

Passengers travelling by sea and waterway are entitled to rights to assistance in cases of cancelled or delayed departure under the EU Regulation on Maritime Passenger Rights (Regulation (EU) No 1177/2010. the Regulations came into effect on 18 December 2012. Passengers will now benefit from similar rights to those travelling by air and rail.
There is a number of exemptions from the obligations in the regulations which are designed to exclude small boats and to protect small businesses. The obligations do not apply to ships certified to carry up to 12 passengers; ships which have a crew responsible for the operation of the ship composed of not more than three persons; trips where the distance is less than 500 metres one way; and on excursion and sightseeing tours other than cruises.
For the purposes of implementation, the Passenger Shipping Association has agreed to act as the voluntary complaint handling body for England and Wales, with London TravelWatch retaining responsibility for services operated and licensed by Transport for London. The Consumer Council for Northern Ireland and the Scottish Government have also agreed to take up similar roles in their respective areas. The Maritime and Coastguard Agency (MCA) will operate as the national enforcement body for the whole of the UK.

What's new item:


28/12/2012: Merchant Shipping (Carriage of Passengers by Sea) Regulations 2012
The Merchant Shipping (Carriage of Passengers by Sea) Regulations 2012 (SI 2012/3152) come into force partly on 31 December 2012 and fully on 12 January 2013. The Regulations are made to implement EU Regulation (EC) No. 392/2009 concerning the liability of carriers of passengers by sea in the event of accidents (see What’s new item18/12/2012: New EU rights for maritime passengers”).

[Page updated: 23/01/2017]

 

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