Damages for ruined vacation

Spending a holiday nightmare: this is the experience that every traveler hopes to never have to live. Especially d fter purchased through the travel agency you trust, the package ” all inclusive ” dreamed for months, which gained just reward after a full working year (or study).

Often, however, the holiday did not fully meet our expectations, due to many variables (weather, flight delays, poor food, etc.) that make it more or less distant from the experience proposed informational brochure.

Which, in this case, the protections provided to consumers? Who is responsible for the discrepancy between the services promised in the package tour? What are the damages suffered by tourists and how much related compensation?

The answer, as always, is in the law.

**The “all inclusive” package**

First, it should explain the notion of package “all inclusive”, in order to understand what are the tourist services subject to legal protection.

L ‘ art. 3, No. 2) of the Directive EU 2015/2302 defines “package” the combination of at least two different types of tourist services for the same trip, carried out by a single trader (eg the Tour Operator) also at the request of traveler, before the conclusion of a single contract for all services.

Alternatively, regardless of whether the consumer to conclude separate contracts with different suppliers (hotel, transportation, living room), tourist services can be:

purchased at one store and selected before the traveler agrees to pay;
offered, sold or billed at a flat rate or global;
advertised or sold under the name ‘package’ (or other synonyms);
combined after the conclusion of a contract by which the practitioner allows the traveler to choose from a selection of different types of tourism services (eg frequent reservations made on the internet);
purchased from distinguished professionals connected through online booking process where the name of the traveler, the details of the payment and email address are transmitted by the professional with whom it concluded the first contract with one or more other professionals.

For the combination of services may constitute a package, it is necessary that each of them represents a substantial part of the value of the combination, it is advertised as such and purchased prior to the execution of the package.

The right to vacation and the responsibilities of the Tour Operator and the intermediary

Clarified the definition of tourist package, it is important to add that the holiday is a consumer’s right to fully enjoy the purchased trip, in order to derive pleasure, recreation, or rest, first recognized by the Law, and subsequently by the European and national legal systems.

Consequently, the injury suffered by the tourist during the trip, caused by external events to his conduct constitutes a damage resulting from the vacation time spent unnecessarily and dall’irripetibilità lost opportunity.

It, in particular, is considered a damage of a contractual nature, resulting in the infringement or all’inesatta execution of the object of the tourist package performance by the Organizer and, as such, is compensable in via asset that does not balance.

This principle, expressed for the first time since the European Court of Justice judgment in the note “Leitner” of 12.03.2002 (C-168/00), was expressly recognized in Europe by ‘ art. 5 of Directive No. 90/314 / EEC (repealed by Directive EU 2015/2302 ) and, in Italian law, in Articles 43 and 47 of the Code of Tourism.

The responsibilities of the Tour Operator and the intermediary

According to these rules, the organizer of the trip “all inclusive” (living room, transportation, meals, assistance, etc.) Or intermediary (eg the Travel Agency) – each for its own responsibility – are accountable to the tourist / consumer for the proper performance of the obligations under the contract, “whether they must be carried out by themselves or by other service providers.”

Therefore, in case of default or improper performance of the services envisaged in the package from the Organizer (or intermediary), or of service providers of which it exercises (for example, the Airline) , the former is obliged to compensate the consumer for damages patrimonial and moral incurred by the latter due to breach of contract put in place by the latter.

The qualification and quantification of damage

The damage compensable voices, then, are two:

The economic damage caused by the cost of tourist services not used.
The non-pecuniary damage caused by the disappointment and stress suffered as a result of the loss of enjoyment of the holiday or part of it.

While the former is easy to quantify – because the compensation will correspond to the reduction in the price of the holiday, equal to the cost of services not used – is more complicated to determine the second, because of the objective difficulties in providing concrete evidence of the negative psychological implications.

According to case law, the liquidation of non-pecuniary damage will be determined on an equitable basis by the court , which must take several factors into account:

the uniqueness of the journey;
the subjective value attributed to the holiday (think to family reunification for holidays);
stress suffered as a result of disruptions;
the disappointment for not taking the whole holiday or part of it.

According to art. 47 of the Tourism Code, however, the Recoverability of the damage and the possible termination of the contract shall be subject to a requirement: the non-performance or improper performance of the services which are covered by the package does not have to be of little importance , in accordance with ‘art. 1455 of the Civil Code.

To this end, the Court has clarified that the tourist purposes and holiday entertainment is not an irrelevant reason. On the contrary: it represents the main cause of the contract ” all inclusive ” entered into by the consumer, “as it is functional and instrumental to the realization … of a holiday rest and recreation” (Civil Cassation, judgment 24/07/2007, n. 16315) .

Burden of proof

Tourists at this point, if it is to obtain compensation for the damage ruined holiday, must attach to their request only:

The contract signed with the organizer of the trip;
the evidence of the failure of Tour Operators (eg .: photos, videos or testimonials), confirming its failure to perform the promised services or the incompatibility of the latter compared to those actually unexpended;
any receipts for expenditure incurred because of inefficiencies (meals, drinks, expenses for transport, etc.).

The burden of proving the absence of liability to the consumer, in fact, will fall entirely on the organizer of the trip, which will need to demonstrate:

of the completion of the benefits provided in the contract;
or that the injury was due to force majeure (eg an earthquake) or by third parties with respect to the employees referred to in the package, or even the conduct of the same consumer.

The procedure to obtain compensation

If, during the holidays, the tourist finds that the promised services are missing entirely or are dissimilar from those really carried out, has the burden of without delay notify the Tour Operator (preferably by e-mail or fax), to allow this ‘last put an immediate remedy.

If such activity by the organizer, is impossible or involve disproportionate costs, the tourist will have the right – as shown above – to a reduction in the price of the holiday , as well as compensation for moral damage.

To obtain such compensation, he will necessarily have to send a formal complaint to the organizer by registered A / R or PEC, within and not later than 10 days after returning from the place of departure at the end of the holiday on pain of dismissal from exercising his right .

In the event of failure or negative response to the notification by the tour operators, the consumer will necessarily take legal action within one (1) year after returning from vacation to get compensation for damage suffered, on pain of prescription of this right.

The Board, therefore, is to immediately contact a lawyer, if it is established that the services offered are dissimilar than those promised in the contract signed and follow all the instructions above, in order to get the right compensation for the damage suffered.

SUMMARY

The “package” is the combination of at least two different types of tourist services essential , for the same trip, carried out by a single trader (eg the Tour Operator) also at the request of the traveler, before the conclusion of a single contract for all services.

Therefore, the injury suffered by the tourist during the trip, caused by external events to his conduct, constitutes a breach of nature contract , resulting from the vacation time unnecessarily spent and the ‘ uniqueness of the opportunity lost , compensable either via:

Balance : the costs for tourist services not used;
no asset : the l -pecuniary damage caused by the disappointment and stress suffered as a result of the loss of enjoyment of the holiday or part of it.

The responsibility for the ‘non-performance or defective performance of the services covered by the package (not unimportant) r Icade organizer of the trip, which will exonerate themselves by demonstrating the exact fulfillment of the performance, or the responsibility of the same tourist or of third parties with respect to the contract .

To obtain such compensation, the consumer will necessarily have to send a formal complaint to the Organizer by registered A / R or PEC, within and not later than 10 days after returning from the place of departure at the end of the holiday. In the event of failure or negative feedback, you will have to take legal action within one year of return.

The law firm Coscia, specializing in transportation law and Tourism, offers its customers a complete legal both in and out of court in respect of damage ruined holiday, thanks to a deep-rooted industry experience and a continuous update on changes in legislation and case law.