Sometimes things go wrong while on holiday and you may end up disappointed that your holiday was not as you expected or as outlined in the brochure.
EU Directive 2015/2302 offers holiday makers certain protections when they buy a ‘package’ of ‘travel services’. This EU Directive has been transposed into Irish law by S.I. No. 80/2019 and S.I. No. 105/2019, amending the Package Holidays and Travel Trade Act 1995.
There are different types of ‘travel services‘, such as:
- car rental;
- Other tourist services which are not intrinsically part of the above but represent an essential feature and account for a significant part of the cost of the holiday (e.g. guided tours, rental of sports equipment, tickets, etc. representing more than 25 per cent of the total value).
What is a Package?
It is important to establish whether your holiday is a package holiday within the meaning of the legislation.
A ‘Package‘ is a combination of at least two different types of travel services for the purpose of the same trip or holiday, provided it lasts for more than 24 hours (or includes an overnight stay), and is sold at an inclusive price (e.g. purchased from a single point of sale, irrespective of whether a single or separate contracts are concluded with a single or separate traders).
This definition covers packages pre-arranged by a trader (ready-made) or at the request of the consumer (dynamic/customised). The following scenarios also fall into the definition of package:
- A combination of travel services sold as a ‘package’, or using a similar term.
- Travel services combined after the conclusion of a contract by which a trader entitles the consumer to choose among a selection of different types of travel services (e.g. gift box).
Consumers enjoy more protections when buying a package than when buying travel services independently. Be aware, however, that the purchase of various travel services through online booking processes may not necessarily result in a package. Even if the services purchased are not a package, some protections still exist in the case of ‘linked travel arrangements’ (e.g. security in the event of non-performance of a travel service as a result of insolvency).
‘Linked travel arrangements’ are defined as at least two different types of travel services purchased for the purpose of the same trip or holiday, not constituting a package, resulting in the conclusion of separate contracts with the individual travel service providers, where a trader facilitates, on the occasion of a single visit or contact with his point of sale, the separate selection and separate payment of each travel service.
The provision of a link in a targeted manner also constitutes a ‘linked travel arrangement’ if the said link results in at least one additional travel service from another trader, when the contract with the latter is concluded within 24 hours from the first booking. If, in the same situation, the trader facilitating the link transmits the consumer’s name, payment details and e-mail address to the other trader or traders, this combination of travel services is regarded as being a ‘package’.
Additional protections are also available to consumers where the trader facilitating a ‘linked travel arrangement’ failed to inform consumers about the insolvency protection, or that they will not benefit from the other rights applying to packages.
Who is responsible for the proper performance of a package?
You may buy directly from the trader who combines the packages (the organiser, e.g. a tour operator) or through a retailer (e.g. a travel agent). Both have formal responsibilities (e.g. liability for misleading brochures). The organiser is responsible for the actual performance of the package, irrespective of the providers of the travel services included in the package. Organisers are also required to provide a financial guarantee to cover refunds and repatriation in the event of insolvency of the organiser.
The Commission for Aviation Regulation licenses travel agents and tour operators in Ireland.
The package holiday brochure must indicate clearly and accurately the following information:
- The price of the holiday
- The holiday destination and the means of transport used
- The type, location and description of the accommodation
- The meal plan
- The passport and visa requirements
- The health formalities
- The timetable for payment
- The deadline for informing the consumer in the event of cancellation
- Any tax or compulsory charge
The information contained in the brochure is binding on the organiser and it must not be false or misleading. If you enter into a contract based on what was in the brochure, you can claim damages if the information turns out to be false.
Before the contract is concluded, the organiser must also provide you with written information on the following:
- The passport and visa requirements
- Health formalities (i.e. if you are required to have any special vaccinations or health advice)
- Insurance requirements
- The arrangements in place should the consumer need to be repatriated (return home unexpectedly)
- In the event of insolvency, the arrangements for the security of the money paid over
Changes to the Package Holiday
If an organiser significantly alters a term of the contract (e.g. price or accommodation) or cancels the contract, you must be given one of the following options:
- A replacement package of equivalent or superior quality
- A lower grade package with a refund of the difference in price between the two packages
- A full refund
The organiser does have the right to cancel a package holiday due to factors beyond their control. In such cases, you are still entitled to a refund or a replacement package as set out above.
If you cancel your holiday yourself, you must take into account that you may lose your deposit or be required to pay a cancellation fee.
Price revisions are only allowed in a number of specific circumstances, e.g. currency fluctuations, variations in the cost of fuel, changes in government tax or duty. No price changes are allowed within 20 days of the departure date.
What to do if something goes wrong
If you run into difficulties while on holiday you should:
- Report the problem immediately to the local representative or the organiser.
- Give the local representative or the organiser the opportunity to remedy the situation at no extra cost.
- If the problem is not resolved, gather as much evidence as possible to support your case (e.g. take photographs).
- Submit your complaint in writing to the organiser within 28 days of your return home. You should send another letter of complaint if the organiser does not respond within a reasonable time.
If the organiser refuses to offer any compensation, you may pursue the matter through the Small Claims Court or, alternatively, through out-of-court dispute resolution (e.g. arbitration), if available. You should refer to your contract terms as the package holiday contract will outline the procedure for dealing with complaints.
You should note however that you may not be entitled to compensation if the failures which occur in the performance of the contract are attributable to:
- A third party, unconnected with the holiday arrangements, and which are unforeseeable or unavoidable
- Unusual and unforeseeable circumstances beyond the control of the organiser