E-tourism: New technologies, package travel and other touristic contracts Antonia Paniza-Fullana Civil Law Lecturer University of Balearic Islands

IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS E-tourism: new legal challenges  New ways of commercialization of tourist services or products  New forms of marketing (LBS services, cookies and individualised publicity, adwords, Tourism 2.0,…)  Offer in Internet and International Private Law issues (European Court of Justice, December, 7th, 2010, Case Pammer).  Low cost air carriers practices (SAP of Barcelona, October 5th, 2011; STS December 12, 2011).

IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS PTD-Consumer Rights Directive- Electronic Commerce Directive  Directive of consumer protection: distance contracts of tourist services, but not package travel. Whereas 32: “The existing Union legislation, inter alia, relating to consumer financial services, package travel and timeshare contains numerous rules on consumer protection. For this reason, this Directive should not apply to contracts in those areas”. Article 3.3: This Directive shall not apply to contracts: g) which fall within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours

PTD-Consumer Rights Directive- Electronic Commerce Directive Distance contracts /Electronic Commerce/Package Travel. This will lead to different levels of protection between customers booking package holidays and those booking other forms of travel arrangements. Questions: Is it necessary include specific rules in the new PTD in case of use electronic devices? Or is it enough, at the moment the Electronic Commerce Directive? IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS

IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS  Spanish legislation –and until last consumer protection Directive- remove the application of certain aspects of the rules of distance contracts to transportation services, accommodation, food and entertainment. It was clear in the case of the right of withdrawal and the period of contract by the nature of these services, but was not the case with the information requirements.  The new Directive on Consumer Rights of October 25th, 2011 seems to give a twist over previous proposals submitted by regard to the issue of distance contracts of tourism services. Now that exception does not appear but that leaves out of its scope package travel, timeshare, which are governed by specific legislation, and passenger services with some exceptions.  A new question arises: what happens when these products or services are performance in distance, as their specific regulation does not refer this issue? As regards other tourist services such as accommodation, the application excludes only the right of withdrawal.

IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS PTD and electronic contracts  Is it necessary to reframe the paper of the different parts that participate in the on line contracts of tourist services. They are possible to be enumerate: the company that facilitates the sale platform on line; service providers, on line booking companies, airline carriers, hotel, rent a car companies, virtual travel agencies…  Redefine the concepts of “organizer”, “retailer” or the own definition of “package travel” in the new market of tourist services?

IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS Resolution of European Court of Justice, December 7th, 2010  Determination of jurisdiction in the area of international consumer contracts is a very important issue in the field of consumer protection. directs such activities to the Member State of consumer’s domicile  Internet and new technologies used in the conclusion of contracts, in this case tourism services contracts, require an appropriate interpretation of Article 15.1 paragraph c) of Regulation 44/2001 to the new context to determine the cases that a person who pursues commercial or professional activities directs such activities to the Member State of consumer’s domicile.  This issue requires the previous study of some questions directly related to this question such as the analysis of the concept of package travel or qualification of a contract as a distance contract.

IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS Low cost practices In Spain, some practices of the low cost companies are judged: - SAP of Barcelona 2010, October 5th: have the consumer the obligation to print the boarding pass or to pay a fee of 40 euros? - STS 2011, December 12: general terms; “emission fees” in case of electronic performance contract.

SAP of Barcelona 2010, October 5th  Lawsuit against Ryanair.  The duty to print the boarding pass by the purchaser and the payment of a fee of 40 euros in case that the purchaser do not print the boarding pass.  In this case the claimer forgot the boarding pass and he had to pay the fee of 40 euros.  Diferent resolutions: First Instance Court and Regional Court IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS

STS 2011, December 12  Lawsuit against Spanair. (In case of web contracts).  Is according to the law the payment of “fees service” only to use electronic devices to performance the contract? Is this an abusive clause? IFTTA WORKSHOP ROSTOCK 2012 UNIVERSITY OF BALEARIC ISLANDS

E-tourism: New technologies, package travel and other touristic contracts Thank you very much for your attention