Case law

  • Case Details
    • National ID: 107/2002
    • Member State: Spain
    • Common Name:Emilio L. L. v “Viajes Ecuador S. A.”
    • Decision type: Other
    • Decision date: 28/02/2002
    • Court: Audiencia Provincial (Appellate court, Vizcaya)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Package Travel Directive, Article 4, 6. Package Travel Directive, Article 5, 1. Package Travel Directive, Article 5, 2.
  • Headnote
    1. The liability of the retailer and of the trip organizer is separate, since each of these is liable only of their specific sector of their management, and there is not joint and several liability.
    2. There is discrepancy and contradiction in the Spanish case law on whether the article 11 of the law 21/1995 establishes or not the joint and several liability (which is examined in great detail in the judgment), so it is not appropriate to impose the costs for the hearing on the party that looses, since it is a controversial issue, according to the Law of Civil Procedure.
  • Facts
    The appellant agreed a contract for a packed holiday to Cuba that was not correctly executed due to changes of hotels, delay in the transfers, overbooking, change of itinerary with cancellation of some excursions and change of the number of nights to stay, for which demands from the defendant, on these grounds demands from the defendant, the travel agency, “Viajes Ecuador”, 901.52 euros as compensation. The consumer complained once back in Spain to this agency that sent the complaint to the trip organizer “Politours S. A.”, which offered a compensation that the consumer judged insufficient. The appellant only took the travel agency to court.
  • Legal issue
    This judgment divides its arguments in two blocks: on the one hand, rejects the existence of joint and several responsibility between organizer and retailer, so the claim against the travel agency is dismissed. On the other hand, it makes clear the contradiction within the Spanish case law regarding this point (recording literally the whole exposition of arguments in favor of the joint and several liability that made the Appeal Court itself, in its 3rd section, in the judgment of 25th April 2001; but the 5th section, followed by this judgment of 2002 disagrees with it), recognizing that each litigant party has to pay its own costs of the hearing, since the lack of uniformity of the criteria within case law prevents from imposing costs to the loosing party. It is a judgment with one of the most thorough summaries on the subject.

    Thus, section 5th of this Appeal Court of Vizcaya considers that the travel agency, according to the arguments in its judgments of 20th January 1999 and 28th July 2000, is not liable, since it performed its duties as retailer of a package travel passing on to the client the brochure, the detailed information, and the documents that it received from the organizer. Therefore, although the travel agency receives the money for the trip, it does so as commissioned by the organizer, so it gets a share (management and sale of the trips), with no saying on the structure of the trip, nor in the changes that could happen in the course of the trip, as it is proved by the fact that there is no complaint about its actions but there are about the organizer’s, the one addressed by the consumer during the trip.

    The judgment adds that the role of the organizer from the legal point of view is “to project, elaborate and organize all kinds of services and tourist packages in order to offer them to the retail agencies, not being able to offer its products to the user or consumer”. And the role of the retail agency, among others, is to commercialize the product of the wholesaler organizers, selling directly to the user or consumer, “and though it is true that as a guarantee for the consumer, as a consequence of the art. 27.2 of the law 26/1984 and the Communitarian Law the aforementioned Law for package travels is born, which in its art. 11 establishes the joint and several responsibility of organizers and retailers according to the duties that belong to them in their appropriate area of management of package travels, it is also true that such liability stops when the faults detected in the fulfillment of the contract are due to an event that the retailer, despite of all its diligence, could not foresee nor overcome (art. 11.2. d), since it was not within its area of management, which happens in this case”.

    On the second hand, in order not to impose the costs of the hearing since there are serious doubts on the applicable Law because of contradictory case law (art. 394.1 Law of Civil Procedure), since “it is true that there is discrepancy in case law on this matter, even within the sections of this court”. To illustrate this argument it includes the ideas of the SAP Vizcaya (3rd section) of 25th April 2001, according to it: there are two case law approaches on joint and several liability of a travel agency. One approach is represented by the SAP Barcelona (17th section) of 14th March 2000 and the best doctrine. According to it, the organizer of the trip is whoever takes on the duty of the result, although it had carried out its execution through auxiliary agents, whereas the retailer, unless it assumes another duty or justifies an identity of personality with the organizer, its area of management is limited to be an intermediary between the organizer and the consumer, being in charge of the sale and selection of the trip requested by the consumer. For this reasons its liability is only in connection to its work of intermediary, if it has not taken part in the organization or execution of the trip (thus SAP Badajoz 25th January 1999, SAP Vizcaya, 5th section, of 11th January 1999 and SAP Barcelona, 17th section, of 20th November 1998).

    Instead, there are other series of resolutions which interpret that the retailer’s liability is always and in every case joint and several with the organizer’s, as it is stated for example in the SAP Jaén, 2nd section, of 25th April 2000, SAP Alicante, 6th section, of 4th May 1999, SAP Zaragoza, 4th section, of 16th February 1999 and of 21st December 1998, SAP Guadalajara of 4th September 1998, SAP Barcelona, section 16th, of 5th February 1998, SAP Alicante 4th section, of 24th July 1998. The reasons in favor of this interpretation on solidarity are:

    1st. Although the agency has as its main duty being an intermediary and accounts only for its duties, “the aforementioned Directive of the Community as well as the law itself to regulate the package travel intent to offer a wider protection to the consumer (exposition of the reason of the law), so that the retailer’s liability cannot be so restricted as it would appear out of that first interpretation: in the event that a retailer agency sold a combined trip, to travel to a foreign country being the organizer also a foreign company, the agency is liable although it has not been the organizer because it is responsible for the contract to be carried out correctly, as it can be deduced from the art. 11.2 of the law 21/1995.

    2nd. It confirms that the retailer’s liability is not limited “to its area of management” (against the literal interpretation of art. 11.1 of the Law 21/1995) the art. 9.2 of that Law, since when the trip was cancelled by the organizer, the retailer will be liable for the refund to the consumer, in the same way when the trip was of inferior quality to the one offered and it was appropriate to reimburse the consumer the difference in price (art. 9.1 of the Law).

    3rd. As the traveler is a consumer, arts. 25, 26 y 27 of the law 26/1984, General Law for the protection of Consumers and Users, apply to him. It establishes his right to be compensated for damages in the use of services, ad if in the production of damages, several people were involved, there will be joint and several liability.

    4th. The consumer has the right to count liable for the failure to comply all those that benefit of the payed price, who are the retailer who gets the request, as well as the wholesaler that offers the programme, as the does who provides with the accommodation. The client can go against all or against any of them. The decision on this matter should not affect his claim.
  • Decision

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