CHARTER OF TOURIST RIGHTS
INTRODUCTION
MOVIMENTO CONSUMATORI has always been sensitive to tourist rights.
If the citizen-consumer, weak subject in social and economic relations,
needs a strengthened legal protection, the tourist-consumer needs it more:
beeing out of his own country, having few time, ignoring the spoken language
(sometimes), all these things make the tourist more vulnerable and make him less
capable to negotiate.
We think that citizen-consumer-tourist should improve the awareness of his rights and
duties and should plan his trips considering environmental compatibility and social
responsability, respecting different cultures and growing through discovery,
exchanges and knowledge.
According to this point of view, MOVIMENTO CONSUMATORI, since 1986 has
produced the “The Charter of Tourist Rights” (“Carta dei diritti del turista”), it has
carried out an informatic guide “A practical guide for tourists in Europe”, in alliance
with European Union; it has taken part in consulting on Code of Consumption
(Codice del Consumo) - passed now and has developed through his Sections the net
“Sos Tourist” (SOS Turista).
This new edition of the Charter, approaching most frequent giuridical and contractual
issues in a simple way, intends to be an updated guide about main rights and duties
for people who travel.
We hope that it will be an useful instrument to prevent adverse situations and to give
help for those one it wasn't possible to avoid.
Lorenzo Miozzi, President of Movimento Consumatori
This tenth edition of the Charter follows important new regulations. The Code of
Consumption get together pre-existent rules about time-sharing and turist packets,
extending protections on several point.
Since 2005, in air transport, the EU Regulations n. 2004/261/CE orders the noboarding,
cancellation or delay of a flight cases; the new outline law (135/2001) and
the law competence of the Regions about tourist and hotel issues (Item V of
Constitution).
It seems important introducing a chapter about travel with animals and also an
index of international convenctions, european, national and regional laws in
the sector; it seems also important to indicate MC'Sections , having skill and
expertise to assist tourists.
This guide represents the product of more than 20 years specific experiences
of MOVIMENTO CONSUMATORI, and has the aim of giving important
instructions for tourists.
Our intention is to follow this tradition, so it will be very appreciated to
receive suggestions and observations to develop further issues and
improvements.
Roberto Barbieri, M.C. - SOS Tourist
PACKAGE TOURS
Agencies and Tour Operators:
Package tours are in practice all-inclusive holiday formulas, organised by
tour operators and mainly sold to the public through travel agencies.
The travel agency is only responsible with respect to its role as a dealer and
therefore for sales, bookings and information.
The tour operator, whose name appears on the brochure, is responsible in the
event of any problems regarding the quality of the service. The tour operator
is also liable in the event of any breach of contract or damages caused by the
suppliers it has chosen (hotels, airlines, guides, etc.), and will have to seek
compensation from these suppliers after reimbursing the tourist.
Changes in price:
After you’ve already purchased your holiday, you could still be unpleasantly
surprised by a price increase. Such an increase may not occur for any reason
whatsoever later than 20 days before departure, it may not be more than 10%
of the original price and the change in price must be justified by variations in
transport costs, fuel costs, exchange rates, duties or taxes.
In the event of a price increase over 10%, the consumer is entitled to withdraw
from the contract without penalty and demand reimbursement for the entire
sum paid to date.
After the 20th day prior to departure has elapsed, the consumer is entitled to
depart without paying any further increases in price.
Changes to contractual terms:
In the event, before departure, of the operator or the agency informing the
customer of changes to one or more services included in the package, with or
without variation in price, the consumer may choose from the following
options:
to accept the changes;
to withdraw from the contract (with reimbursement of the sum paid to date);
to accept the offer of an alternative package of equivalent or higher value (at
no additional cost) or of lower value (with reimbursement of the difference in
price).
The operator or agency must be informed of the choice within two working
days of receipt of notification of the change.
Cancellations before departure:
The tour operator may cancel the tour, within the period specified in the
contract, and reimburse the sum paid if the minimum number of participants
specified in the contract is not met. Should the consumer be unable to use the
package tour purchased, he or she may not withdraw from the contract but
may transfer the contract to another person. In this case, the operator or agency
must be informed of this transferral within 4 working days of departure,
with the details of the replacement person. The original customer, together
with the new purchaser, is still obliged to pay any outstanding sums.
Departure delays:
Sometimes, a delayed flight may force us to spend the first day of our holiday
in the airport instead of at our destination. Tour operators generally try to
protect themselves from liability in this case, transferring responsibility to the
airline or the airport operator. Some tour operators even include clauses in
their contracts whereby “the time of departure is purely indicative”, thus
attempting to evade responsibility in the event of delay. It is important to note,
however, that such clauses are illegitimate. Indeed, in organised tours, “the
date, time and place of departure and return” are essential elements of the
contract (art. 86, subsection g of the Consumer Code). Such clauses are
actually unconscionable, as they limit the liability of the operator in the event
of its failure to fulfil it obligations.
When looking through brochures, we therefore recommend that you not only
compare services and prices, but also carefully consider any terms and clauses
regarding responsibility stipulated in the contract.
Tourists abandoned in distant countries:
We often hear about cases of tourists abandoned to their own devices. In these
instances, there can be only one cause: the tour operator has not paid its local
suppliers (hotel, airline etc.) for the services, and as a result, the latter has
ceased to provide the services to the tour operator’s customers – in other terms
the tourists – and, in spite of the fact that they themselves have paid in full and
in advance, they now find themselves refused access to the hotel or to the
journey back home. The National guarantee fund has been established to
tackle just such eventualities. In the event of insolvency or bankruptcy of the
vendor or operator, the fund reimburses the price paid for the holiday, brings
the consumer back home and may also compensate the consumer for any
further damages suffered (which must be claimed within 3 months of
return).
Inconveniences experienced at the destination:
Once at the actual destination, the most commonly encountered
inconveniences are: poor hygiene conditions at the hotel; hotels not matching
up to the category claimed; active building sites within the complex; beaches
shown in the brochure are unavailable because they are actually private; and
food poisoning.
In all of these cases it is important to remember that in addition to the terms
explicitly stipulated in the contract, all descriptions and illustrations contained
in the brochure are also binding for the operator. Consequently, the operator is
therefore liable in the event of any correlated non-fulfilment or damages.
The intrinsic damage of a “ruined holiday”:
The package tour has a value greater than the sum of its component services.
The tour operator is not merely selling transport + hotel + ancillary services,
it is selling a holiday, in other terms, a period in which the consumer
replenishes his or her psychological and physical energies. Tour operators are
fully aware of this aspect when they use it to promote their products in
advertising, but conveniently forget it again when a disgruntled consumer
demands compensation, not only for material damages and the services not
rendered, but also for psychological and moral damages (more simply put, for
ruining their holiday). Indeed, if the quality of the holiday is compromised
by the lack or inadequacy of one or more of the services, the tourist is not
only entitled to compensation for the services not rendered, but also for the
fact that the holiday failed to satisfy these expectations, which were an integral
part of the package (and which constituted the added value advertised by the
tour operator).
Recently the European Community Court of Justice has deliberated that the
damages for which a tourist can claim compensation shall also include the
moral damages of a ruined holiday.
Insurance:
The tour operator is obliged to avail itself of third party insurance for the
protection of the consumer, with coverage for personal injury and damage to
property. Operators often offer the consumer a separate insurance policy. As
the sum asked is generally small, it may be advantageous for the consumer to
purchase additional insurance to protect him or herself in the event of future
disputes with the tour operator. Bear in mind however, that this form of
insurance is optional and not obligatory, as the operator will often have us
believe
“Roulette” formula:
This is a special type of package tour offered by tour operators: in exchange
for a substantial price reduction, the tourist accepts a varying degree of
uncertainty regarding the exact location of the hotel.
In practice, this formula is offered in three variants:
most commonly, the category of hotel and the resort are guaranteed;
as above, but with the degree of uncertainly narrowed to a small selection of
previously identified hotels (for example, from those shown in the tour
operator’s brochure for that particular resort);
conversely, the degree of uncertainty may be broadened, giving the tour
operator the freedom to choose not only the hotel but also the resort itself,
within a defined geographical area (for example, choosing from different
resorts on the same island).
In each of these cases, the logistical details of the holiday are not specified
upon concluding the contract, but only a few days prior to departure and, in
some instances, only upon arriving at your destination.
The hotel is determined at the last possible minute on the basis of available
vacancies in the hotels (indeed in any hotel in the resort or resorts specified,
the only proviso being the category guaranteed by the operator).
Therefore, consumers must be aware of the fact that in return for a better price,
they are required to tolerate a certain degree of flexibility: there is no way to
define the hotel in advance nor even to specify certain special conditions, such
as “sea view”, distance from the beach and so on. Contrary to the general
principal of the package tour, what appears in the brochure is not binding for
the tour operator, which guarantees nothing specific and only a certain level of
service (category).
Additionally, any commitment made verbally by the tour operator or agency
has no value whatsoever: if, for example, in the context of a roulette formula,
a maximum distance from the beach or a more limited selection of hotels is
agreed upon, this must be put down in writing and/or included as a clause
in the contract. This is necessary because the consumer cannot demand
fulfilment, nor claim compensation for non-fulfilment, of promises made only
verbally.
Online buying:
The online purchasing of tourism services and of package tours in particular,
is still a relatively uncommon phenomenon. It is, however, on the rise and in
2003, ASTOI (the association of the major tour operators in Italy) estimated
that internet sales accounted for 1 to 1.5% of the overall turnover of its
associates.
This phenomenon is now surrounded by an intricate body of protective
legislation, although it still entails some additional risk compared with a
conventional purchase through an agency.
First of all, the regulations for the purchase of package tours given in this
chapter apply identically to online purchases. The following therefore remain
unchanged: the right to information and regulations regarding changes in
price, changes in contractual conditions and the responsibility of the operator
and vendor of the package with regards to non-fulfilment and damages.
Concerning the right to information in particular, we believe that the
obligation to issue a copy of the contract to the consumer is fulfilled if the
vending website allows you to download and print the contract in its
entirety (we recommend that you always do this before signing a contract, to
give you time to read all of its terms in your own time). If the website does not
offer this feature, it probably has something to hide and you’d be well advised
to drop it and look somewhere else.
Secondly, before concluding the transaction and making the online payment,
always check who you are actually purchasing the service from.
It may just be a tour operator or agency who also operates on the web, but it
could also be a makeshift agency that only operates on the internet, with no
official license and offering no guarantees towards the consumer or, worse
still, it may even be a scam organisation.
The greatest risk is that the organisation vanishes into thin air as soon as we
have paid the first deposit (or perhaps even the full sum paid up front).
But even where we are not the victims of an outright scam, bear in mind that
in the event of future problems, it will be very difficult if not impossible to
exercise our rights if the vendor is only a virtual concern or is based on the
other side of the world.
It is therefore a good idea to always check that the website clearly gives the
physical address of the vendor and the details of its official license and
membership to category associations. This means that we can also verify that
it has been registered with the chamber of commerce and in the regional
charter of travel agents.
The lack of these details must be seen as a worrying sign of scant
professionalism and untrustworthiness.
It is also advisable to check the trustworthiness of the site itself, ascertaining
which technical measures are taken to ensure secure payment and
confidentiality.
In addition to articles 82 to 100 of the “Consumers’ Code” (D.lgs. 206/2005),
the regulations concerning remotely stipulated contracts (articles from 50 to
61 of the Consumers’ Code) are also applicable to online purchases of package
tours.
Additionally, consumers are entitled to exercise the “right to withdrawal”, in
other terms the freedom to back out of the contract simply because they have
changed their mind, regardless of the reason.
The new article 64 of the Consumers’ Code has unified the terms for the right
to withdrawal in remotely stipulated contracts and the right to withdrawal in
contracts for sale stipulated outside places of trade, which were hitherto
regulated by two separate decrees.
The right to withdrawal may be exercised within 10 working days of the
conclusion of the contract, by registered return letter signed by the same
person who undersigned the contract and addressed to the vendor (or the party
indicated in the order). The right to withdrawal may be exercised up to 90
days after the conclusion of the contract should the vendor fail to fulfil its
obligation to inform the consumer of his or her right to withdrawal and in the
event of incomplete or incorrect information being given.
Conclusion:
In the event of inconveniences experienced on holiday, it is advisable to make
your complaint (preferably in writing) while still at your destination
submitting it, if possible, to the local representative of the tour operator. If the
problem is not resolved, you may still exercise your rights after your return,
by sending a registered return letter to the tour operator within 10 working
days. In this case, it is wise to gather evidence while still at your destination,
such as photographs, statements by other tourists who may be contacted after
your return and documents.