Case law

  • Case Details
    • National ID: 208/1999
    • Member State: Spain
    • Common Name:Silvia María A. U. v “Image Tours S. A.” and “Lepanto S. A.”
    • Decision type: Other
    • Decision date: 31/07/1999
    • Court: Audiencia Provincial (Appellate court, Navarra)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Package Travel Directive, Article 1 Package Travel Directive, Article 2, 2. Package Travel Directive, Article 5, 1. Package Travel Directive, Article 5, 2.
  • Headnote
    1. The liability of the organizer, of the travel agency and their employees and representatives is joint and several, and therefore it is possible to bring an action against any of them, in a possible interpretation of 11 of the law 21/1995 and through direct application of art. 27 of the law 26/1984, on consumer protection.
    2. The organizer of the trip is also liable for the optional excursions that other companies take care of within the trip.
  • Facts
    The appellant had signed a contract with a retail company “Viajes Marfil S. L.” a trip to Egypt organized by the defendant “Image Tours, S. A.”, whose insurance company “Lepanto S. A.” is also taken to court in this claim. During the trip, the consumer suffered a traffic accident on 9th August 1996 during the journey between Aswan to Abu Simbel, in an optional excursion offered in the programme and organized by another company, “Wisdom Tours”. As a result of the accident, the appellant a 27-year-old person had to undergo surgery because of numerous injures on her face, despite of which she was left with several permanent consequences, especially scars on her face. The consumer claims compensation solely against the organizer of the trip and its insurance company.
  • Legal issue
    According to the judgment, which shares the criteria of the first instance, the article 11 of the law 21/1995 on package travels establishes a criterion of attribution in solidum of the liability of organizers and retailers, for which “it is not necessary an excessive speculative effort” due to a protectionist aim in favor of the consumer, regarding the package sold to the consumer, its execution and its correct development, which is grounded as well in the General Law for the Protection of Consumers and Users of 1984 (art. 27).

    The offer of an optional excursion, not included as such in the initial tourist package, has to be interpreted as part of the “organizational plan” of the tourist activity offered by the wholesaler organizer of the trip. This is concluded from the information of the brochure and from the opportunity provided in the offer for it to be agreed, so that the users could be under the impression of a compulsory link with the same organizer, as part of the tourist activity agreed. For that reason the organizer of the trip has to be liable too of the potential damages of these optional excursions, without prejudice of their right to reimbursement in relation to who effectively caused the damage and its dependants or whoever is advertised as its representative. The compensation eventually established on the grounds of aesthetic damages (10,392 euros) has to be paid by the defendants (the organizer of the trip and its insurance company).
  • Decision

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