Ruined vacation, trip interruption and refund
In the previous article “damages for ruined vacation” we described the characteristics of the tourist package and analyzed the protections that the Italian and European legislation reserve for travelers who have spent a nightmare holiday, due to missing or different services from those promised by the Tour Operator.
However, often the causes of a ruined holiday, sometimes interrupted prematurely, are attributable to external events, independent of the will and conduct of the traveler or the organizer of the tourist package.
Think of the cases of illness, injury or force majeure that compromise the original travel program and oblige travelers to stay in a hotel room for the duration of the holiday or, in the most serious situations, to interrupt it early, returning at home.
In these cases, are you entitled to a refund of the amount initially spent for the purchase of the tourist package? If so, how much is it? What must be done to request it?
The responsibility of the Tour Operator
First of all, it must be remembered that the holiday constitutes a consumer’s right to fully enjoy the journey purchased, in order to derive pleasure, leisure or rest from it.
Consequently, the damage suffered during the trip, caused by events external to the traveler’s conduct (accidents, illness, natural events, etc.), constitutes damage deriving from the vacation time not enjoyed, from the failure to use the services provided in the package for the purposes for which they were destined and the unrepeatability of the lost opportunity.
This principle was first recognized by art. 5 of Directive n. 90/314 /EEC (later repealed by Directive 2015/2302 EU, currently in force) and, subsequently, by Italian law, with articles 41 and following of the Italian Tourism Code.
According to this legislation, the organizer of the “all inclusive” trip (which, we remind you, can also provide only two combined services, for example flight and accommodation) is responsible towards the tourist/consumer, “for the execution of the tourist services provided from the tourist package contract”, regardless of whether they must be provided by the Tour Operator itself, or by third parties whose work the Organizer uses.
Optional travel insurance
However, often the traveler is informed (or even convinced) by the Tour Operator or by the Travel Agency, to stipulate an insurance contract, supplementary to the tourist package, which protects and guarantees him against external events that force him to withdraw from the contract before departure, or to interrupt the trip during its execution.
However, the travel insurance policy – it should be specified – is NOT mandatory, although many travel agencies or Tour Operators inform their customers of the contrary.
As written above, in fact, the protection in favor of travelers is already fully ensured by national and European legislation, of which the aforementioned sources regulate only part of the matter.
So is it useless to take out supplementary insurance? The answer varies according to the type of policy offered.
If the insurance contract provides for general assistance and the simple reimbursement of expenses incurred for the purchase of the tourist package in relation to the days not taken, this protection is useless, as it is already provided for by law.
If, on the other hand, the policy provides, for example, physical assistance at the place of destination, the organization of transport in emergency situations – including early return – and the reimbursement of all expenses incurred due to the exceptional event, then it can constitute an additional guarantee with respect to that already provided for by law.
Protection in favor of the traveler
So, in the event of an accident, illness or external event that affects the holiday, what should the traveler do?
The only action required is to notify the Tour Operator or Travel Agency if present (preferably via email), informing one or the other of the occurrence and providing all the documentation or information requested by them.
If a supplementary policy is stipulated, it is always a good idea to check which telephone number or email address to contact, to avoid finding yourself without assistance.
If in doubt, the advice is to contact the assistance of both the Tour Operator and the Insurance company, whose contact details are written, respectively, on the tourist package contract and on the insurance policy.
In these cases, the Tour Operator and/or the Operations Center of the Insurance company must provide the traveler(s) with constant and continuous assistance for the entire duration of the trip:
- offering alternative solutions to those originally provided in the tourist package (valid only for the tour Operator);
- supporting the costs of accommodation and any medical/transport costs;
- organizing, if necessary, the return of the traveler(s) if circumstances require it.
Once the holiday is over, the traveler can send a registered letter/PEC to the Tour Operator, requesting the cancellation of the tourist package contract and the reimbursement of expenses incurred for the purchase of the same.
Cancellation of the package and reimbursement of costs
In fact, the tourist package contract stipulated between the Tour Operator and the consumer represents a synallagmatic contract (which provides, that is, obligations for both parties).
Therefore, if the cause of the contract, consisting in the use of a trip for tourist purposes, becomes impracticable due to an unforeseeable event and not attributable to the conduct of the contractors, the consumer may request that the cancellation or resolution of the package be declared. tourism, pursuant to art. 1463 of the italian civil code, with the consequent right to obtain the repetition of the sums already paid.
This principle was endorsed both by art. 12, paragraph 2 of the Directive 2015/2302 EU, both by art. from art. 41, paragraphs 4 and 6 of the Italian Tourism Code, the combined provision of which provides, in summary, that:
“In the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package, or which significantly affect the carriage of passengers to the destination, the traveller shall be entitled:
- to terminate the package travel contract without paying any termination fee;
- to the full reimbursement of payments made – the burden of which lies with the organizer of the tourist package – but not to additional compensation.
It follows that, in the event of termination of the contract, the contracts connected to it will also be automatically canceled (transport services, overnight stays and breakfast in the accommodation facilities, excursions, etc.).
The procedure for obtaining the refund
Once the holiday is over, the traveler, as already written, can send a registered letter/PEC to the Tour Operator, requesting the cancellation of the tourist package contract and the reimbursement of expenses incurred for the purchase of the same.
If a supplementary policy has been stipulated, it is important to assess whether the conditions thereof allow for reimbursement of the costs incurred and, if so, how much they are.
In fact, if the reimbursement is possible or its extent is conspicuous, it is advisable to request it from the Tour Operator, in relation to the costs incurred for the purchase of the package and from the insurance company (always by registered letter or PEC), limited to what is imposed by the conditions. of the policy.
In the latter case, however, the Tour Operator will not be asked to terminate the tourist package contract, otherwise the cancellation of the latter will automatically result in the cancellation of the insurance contract connected to it.
In case of failure or negative response to the communication(s), by the Tour Operator and/or the insurance company, the consumer can take legal action to obtain a refund of the amount spent both for the purchase of the tourist package and for expenses (medical, transport, etc.) anticipated due to the external event that compromised the trip.
Our advice, therefore, is to immediately contact our firm, specialized in transport and tourism law, if the tour operator or insurance company does not want to reimburse you what you are entitled to.