In Spain the travel industry is regulated by several laws and most importantly the “Ley de Defensa de Consumidores y Usuarios” (law for consumer protection). The law is regularly updated in order to adapt to new channels (internet for example) and to the ever-changing consumer landscape. Its latest version is the Real Decreto Legislativo 1/2007 approved on November 16, 2007 which replaced Law 26/84. As with any consumer activity at the purchase of a travel service, both consumer and travel operator agree either implicitly or explicitly on a contract. Royal decree 1/2007 innovation is related to detailing the type of clauses in a contract that can be considered illegal.
Additionally law 21/1995 and law 39/2002 specifically regulate the package holidays industry, consumer rights and travel operator’s obligations.
The travel and tourism industry is very diverse and offers many different types of services that would be too long to list. We can nevertheless group the contentious areas in 4 categories:
- Related to transport e.g. overbooking, loss of luggage, delays and cancellations…
- Related to accommodation e.g. room category different from the one purchased, location different from the one purchased.
- Related to restaurants, bars, catering and gastronomy e.g. poisoning, unsatisfactory location and lack of hygiene…
- Related to other services purchased, like Spa, sport facilities, entertainment…
If the consumer has purchased the services directly (for example flights tickets and hotel separately) he will have to direct his complaints to the individual companies, separately. If the consumer purchased the services through a third entity like a travel agency he will have to address his complaint to the intermediates and/or to the service provider, depending on the contract signed at the purchase. In cases of package holidays the complaint must be directed to the tour operator. To be a package holiday the product will have to include two requirements:
- It will have to include at least two of these:
- Another service that is a significant part of the product
- The product will be sold under a global price without having to pay the different providers separately.
Different ways to solve the problems
If the consumer is not satisfied with a product or service received, he should first contact the customer services of the company. It is always better to follow up any verbal communication by telephone directly by a communication in writing in order to keep material evidence for later if necessary.
If this first initiative fails there are other possible ways.
The administrative way
The consumer can complain to the Spanish administration by filling in a complaint form (hoja de reclamaciones) or by sending a letter to the local OMIC (Municipal Consumer Complaints Office) of the city where the travel product has been purchased. At most the company will be fined, but the consumer will not receive any compensation. Nevertheless if the company is sanctioned by the administration, this can be used as evidence for further complaints.
The Consumer Arbitration System
The consumer arbitration system in Spain (Sistema Arbitral de Consumo) is an instrument enabling the effective and rapid resolution of disputes between consumers and companies or professionals concerning consumer products and services. It is regulated by the royal decree 1/2007 (articles 57 and 58) regarding the new law for consumers defence and the royal decree 231/2008 specifically regulating the consumer arbitration system.
A large majority of travel industry disputes can be resolved through this system. The parties in conflict will voluntarily entrust an arbitration body that will impartially resolve the conflict. Even though the procedure is extra judicial, the final decision will have the same effects as a court sentence. The procedure will last for up to 6 months.
Nevertheless it requires that both parties to voluntarily accept the resolution of the dispute through the arbitration system. We suggest reading the article The Consumer arbitration system in Spain at http://www.velascolawyers.com/arbitration
The judicial way
If the company does not want to go through the arbitration system and discussions with the customer service fail there is always the judicial way, which will be precluded if a solution through arbitration is found. Within this there are two possibilities:
This way is adequate for:
- Forcing the company to pay for damages and interest
- Cancelling clauses in the contract that are in violation of the law for consumer protection 1/2007
- Forcing the company to offer the travel product under the same conditions as advertised
This will be reserved for the most serious cases like:
- Fraud. Where there is premeditated intent by the company to deceive the consumer. For example by selling bogus trips with advance payment and never fully delivering the product purchased.
- Cases of injuries or poisoning. For example inadequate safety and supervision was offered during travel activities or food poisoning.
The judicial way is probably the most expensive and longest way to solve a travel related problem. In case of systematic fraud it is best to join forces with other victims and present a single complaint.
While in the arbitration system proceedings the help of a lawyer will be helpful, in the judicial proceedings the help of a lawyer is mandatory.
Especially when the investment in the travel product is important always check the contractual conditions related to the purchase. When buying the product online the service agreement that will rule any conflict can be found under sections called “term and conditions”, “general conditions”, “booking conditions” or something similar. In a travel agency office there will normally be a contract to be signed.