Terms and conditions for reluctant organisers under the new Package Travel Directive
As ought by now to be well known, the definition of a ‘package’ under the 2015 Package Travel Directive has been significantly extended. Accordingly, the type and number of travel businesses who will be organisers going forward will be greatly increased. These will include companies who have historically traded as agents for the third party suppliers where, amongst other scenarios, the minimum of two different types of travel service are purchased from a single point of sale and are selected before the traveller agrees to pay. No amount of imaginative drafting is likely to change this reality.As ought by now to be well known, the definition of a ‘package’ under the 2015 Package Travel Directive has been significantly extended. Accordingly, the type and number of travel businesses who will be organisers going forward will be greatly increased. These will include companies who have historically traded as agents for the third party suppliers where, amongst other scenarios, the minimum of two different types of travel service are purchased from a single point of sale and are selected before the traveller agrees to pay. No amount of imaginative drafting is likely to change this reality.
Many of those operating with an agency business model may still be in denial as to their contractual responsibilities and liabilities post 1 July 2018 but there seems little doubt that these must now be faced up to including in relation to the terms and conditions and other documentation they will need in their brave new trading environment. It is clear from the consultation which has just closed that the UK government intends, as could be expected, to very largely apply a cut and paste approach to the Directive in relation to the implementing legislation. Although draft regulations have yet to be published, there is no reason to delay consideration of the compliance steps now required given the relentlessly diminishing timescales.
It is worth at this stage briefly reflecting on why ‘new’ organisers need to have terms and conditions which take account of this role. As a general rule, there is no doubt that the objective of protecting your legal position is best served by acknowledging your responsibilities and then drafting to manage these, as far as the law allows. Many limitations and exclusions of, and defences to, liability will only be available if specifically written into the applicable conditions. Other rights, such as the ability to rely on [reasonable] sliding scale cancellation charges, will only arise if specifically reserved in the contract. More particularly for package travel arrangements, the regulations will require that the ‘package travel contract’ sets out the full content of the agreement including all prescribed information (of which there is a great deal). This information includes a statement of the organiser’s responsibility for the proper performance of all travel services included in the contract in accordance with the detailed provisions of the Directive on this.
So comprehensive and carefully drafted booking conditions which are tailored to the particular arrangements the organiser will be offering to the public will be a necessity. As mentioned, these must take full account of not only the specific requirements of the Directive and new UK regulations but also the particular travel services which will be included in the package. The issues which these conditions will need to address include the following;-
• responsibility for proper performance of the contracted services including notification of any lack of conformity
• alteration of the terms of the contract and cancellation by the organiser
• the traveller’s right to cancel and the costs implications of doing so
• the traveller’s right to transfer their contract
• the obligation to provide assistance to a traveller in difficulty
• complaints procedure
• insolvency arrangements
The new Directive is a great deal more comprehensive and creates a much more prescriptive and restrictive regime than that applicable under the 1992 Package Travel Regulations. The terms and conditions required to comply with, and to provide the organiser with protection in respect of, this new legal environment will accordingly need some careful thought and not simply the adoption of a set of existing tour operator booking conditions. For those companies who are already operating part of their business on a principal organiser basis along side an agency model, the package conditions they are currently using will need a detailed review and overhaul before being applied across the business.
Booking conditions are of course the key contractual document which will require attention. However, there are others. Consideration also needs to be given to supplier and agency agreements, confirmations, invoices, website terms and the prescribed pre-contract information. The scale of the time and effort required should not be underestimated. At the very least, it is time to start the process of understanding what compliance will require for your business.
This article was written by Claire Ingleby. Contact Claire on Claire.Ingleby@mb-law.co.uk for further specific Commercial and Employment Law advice.
Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.