Spain: UNWTO concerned about abolition of Spanish Tourism Secretariat

In a press release, UNWTO expressed great concern over Spain's decision to abolish a separate Secretariat for Tourism within the ministry of tourism, industry and trade:

While the decision of the Spanish Government to implement a series of austerity measures to address the public deficit is fully understandable, UNWTO expressed great concern that such measures have translated into the end of a separate Secretariat for Tourism. This decision sends out the wrong message to the market and comes at a critical moment, at the beginning of the tourism high season and as the sector still struggles to recover from the loses of 2009.

Source: UNWTO press release of July 26, 2010; find full text here>>.

European Court of Justice: no obligation to reimburse patient for costs of unscheduled hospital care during a temporary stay in another Member State

Following a complaint from a person insured under the Spanish national health system who had had to be admitted to hospital unexpectedly during a stay in France and who, on his return to Spain, was refused reimbursement of the portion of the hospital costs which, in accordance with French legislation, he had been left to pay, the Commission decided to bring action against Spain for failure to fulfil obligations. The Commission maintains that the Spanish legislation is in breach of the principle of freedom to provide services, since it refuses persons insured under the national health system reimbursement for that portion of the costs of care which is not covered by the institution of the Member State of stay. In that way, the effect of the legislation in question is to restrict not only the provision of hospital care, but also the provision of tourist or educational services, the obtaining of which can be the reason for a temporary stay in another Member State.

In its judgment in Case C-211/08 - Commission v Spain, delivered June 15, 2010, the Court of Justice held that the freedom to provide services encompasses the freedom of an insured person established in a Member State to travel – as a tourist or student, for example – to another Member State for a temporary stay and to receive hospital care there from a provider established in that Member State, where the need for such care during that stay arises because of his state of health. Nevertheless, the Court considers that, viewed globally, the Spanish legislation cannot be regarded as restricting the freedom to provide hospital care services, tourist services or educational services.

The fact of imposing on a Member State the obligation to guarantee to persons insured under the national system that the competent institution will provide complementary reimbursement whenever the level of cover applicable in the Member State of stay in respect of the unscheduled hospital treatment in question proves to be lower that that applicable under its own legislation would ultimately undermine the very fabric of the system which Regulation No 1408/71 sought to establish. In every such case, the competent institution of the Member State of affiliation would be systematically exposed to the highest financial burden, whether through the application of the legislation of a Member State of stay under which the level of cover is higher than that provided for under its own or through the application of its own legislation in the contrary situation.

The Court therefore dismissed the action brought by the Commission.

Source: ECJ press release No 56/10 of June 15, 2010

Full text of judgement available here>>.

European Court of Justice: Directive on unfair terms in consumer contracts allows stricter consumer protection rules by member states

The Tribunal Supremo (Spanish Supreme Court) asked the Court of Justice, in essence, whether the Directive on unfair terms in consumer contracts precludes a Member State from providing in its legal system, for the benefit of consumers, for an assessment as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language.

In judgement of June 3, 2010 in Case C-484/08 (Caja de Ahorros v. Ausbanc), ECJ held that the Directive carried out only a partial and minimum harmonisation of national legislation concerning unfair terms, while recognising that Member States have the option of affording consumers a higher level of protection than that for which the Directive provides. Member States therefore may retain or adopt, throughout the area covered by the Directive, rules which are stricter than those provided for by the Directive. Consequently, the Directive does not preclude national legislation which authorises judicial review as to the unfairness of contractual terms which relate to the definition of the main subject-matter of the contract or to the adequacy of the price and remuneration, on the one hand, as against the services or goods to be supplied in exchange, on the other hand, even in the case where those terms are drafted in plain, intelligible language.

Source: ECJ press release No 52/10 of June 3, 2010

European Court of Justice: liability limit of Montreal Convention includes both material and non-material damage

The Montral Convention provides that the liability of a carrier in the case of destruction, loss, damage or delay of baggage is limited to the sum of 1000 Special Drawing Rights (SDR) for each passenger (a sum equivalent to approximately €1134.71)3, unless a passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case, as a rule a carrier is liable to pay a sum not exceeding the declared sum.

On 14 April 2008, Mr Walz brought an action against the airline Clickair claiming damages from it for the loss of checked baggage in the context of a flight from Barcelona (Spain) to Oporto (Portugal) operated by that company. In that action, Mr Walz claimed total damages of €3200: €2700 for the value of the lost baggage and €500 for non-material damage resulting from that loss. The Juzgado de lo Mercantil nº 4 de Barcelona (Commercial Court No 4, Barcelona, Spain), before which the proceedings were brought, asks whether the limit of air carriers’ liability set by the Montreal Convention in the case of loss of baggage includes both material and non-material damage or whether, on the contrary, material damage is subject to the limit of 1000 SDR, while, on the other hand, non-material damage is subject to a further limit of the same amount, so that the total combined limit for material and non-material damage is 2000 SDR.

European Court of Justice on May 6, 2010 ruled that for the purposes of determining the limit of an air carrier’s liability for the damage resulting, inter alia, from the loss of baggage, the term ‘damage’ in the Montreal Convention must be interpreted as including both material and non-material damage.

Source: ECJ press release 43/10
Full text of judgement Walz v Clickair C-63/09 available here>>.

Air passengers' rights

Reference for a preliminary ruling before the ECJ (Case C-83/10 Rodríguez ea/Air France) from the Juzgado de lo Mercantil de Pontevedra (Spain) regarding the questions,

1. whether the term 'cancellation', defined in Art 2 lit l of Regulation 261/2004/EC has to be interpreted as meaning only the failure of the flight to depart as planned or is it also to be interpreted as meaning any circumstance as a result of which the flight on which places are reserved takes off but fails to reach its destination, including the case in which the flight is forced to return to the airport of departure for technical reasons?
2. whether the term 'further compensation' used in Art 12 has to be interpreted as meaning that, in the event of a cancellation, the national court may award compensation for damage, including non-material damage, for breach of a contract of carriage by air in accordance with rules established in national legislation and case-law on breach of contact or, on the contrary, must such compensation relate solely to appropriately substantiated expenses incurred by passengers and not adequately indemnified by the carrier in accordance with the requirements of Art 8 et seq even if such provisions have not been expressly relied upon or, lastly, are the two aforementioned definitions of the term further compensation compatible one with another?

Spain: Court ruling on missed connecting flight and lost baggage

Plaintiffs purchased flight tickets from Barcelona to Mexico City via London. The initial flight to London took off 30 minutes delayed. As a consequence, plaintiffs missed their connecting flight to Mexico City. The airline placed the plaintiffs on an alternative flight, which arrived in Mexico City more than nine hours later than originally planned. On arrival a piece of plaintiffs' luggage was lost.

First instance court granted €1,200 in damages for the delay under EU Regulation 261/2004 and €1,150 in compensation for the lost suitcase, pursuant to Article 22 of the Montreal Convention.

On appeal of both parties, Barcelona Provincial Court ruled that

• the original flight could not be divided into two separate flights (ie, Barcelona to London and London to Mexico City), but must be considered as a whole (ie, Barcelona to Mexico City) compensate plaintiffs in the amount determined at first instance and
• compensation for material and non material damages together may not exceed the limit established in the Montreal Convention and again confirmed the amount of compensation determined at first instance.

Source (Copyright): ILO Newsletter; find article by Miguel Gordillo here>>.

Summary posted with kind permission of author and pursuant to ILO copy right information.

ECJ Advocate General Mazák: liability limits of Montreal Convention cover both, non-material and material damage

Mr. Walz' checked suitcase was lost on 4 June 2007 during a flight from Barcelona to Porto operated by Clickair. Mr Walz claimed damages of EUR 3 200: EUR 2 700 for the value of the lost baggage and EUR 500 for non-material damage resulting from that loss. Clickair challenged the amount of the damages claimed because it exceeded the limit for liability for lost baggage laid down by Article 22.2 Montreal Convention.

The referring court (Juzgado de lo Mercantil No 4 de Barcelona) observed that the Montreal Convention did not draw any distinction according to the type of damage to which the carrier’s liability relates, and took the view that the limitation on the carrier’s liability should cover both non-material and material damage. However, it indicated that a number of interpretations of Article 22.2 of the Montreal Convention were possible.

In his opinion delivered on 26 January 2010, Advocate General Mazák proposed that the Court should answer the question referred as follows:

• Article 22(2) of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, must be interpreted as meaning that, in the transport of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1 000 Special Drawing Rights per passenger in total, whatever the type of damage and the method of providing compensation.

Case C-63/09 - Axel Walz v. Clickair S.A; full text of opinion available here>>.

International Tourism Law Seminar @ Beja (Portugal)

Next Friday, November 6th, the Polytechnic of Beja, in Portugal, will hold an International Seminar on Tourism Law.

Organized with the support of the University of the Balearic Island, in Spain, the event will be focused on the regulation of hospitality, in Portugal and Spain.

The event counts with presentations by some of the most known lecturers of Portugal and Spain, namely Professors:
José Ángel Torres Lana, María Nélida Tur Faúndez, Antonia Paniza Fullana and María Belén Ferrer Tapia, from the University of the Balearic Islands, Spain;
Verónica San Julián, from the University of Navarre, Spain;
Virgílio Machado, João Almeida Vidal and Afonso Ribeiro Café, from the University of the Algarve, Spain;
Manuel David Masseno, from the Polytechnic of Beja.

SIDETUR - the IberoAmerican Society for Tourism Law is supporting this Seminar.

Spain: refrence for preliminary ruling on Montral Convention in regard to non-material damages

Commercial Court Barcelona (Juzgado de lo Mercantil 4, Barcelona) filed a reference for preliminary ruling to the European Court of Justice on whether the limit of liability referred to in Article 22.2 of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, included both non-material damage and material damage resulting from the loss of baggage.

Case C-63/09; Reference published OJ C 102 of 01.05.2009, p.11.

ECJ: Art 22.2 Montreal Convention - material/non-material damage

Reference for a preliminary ruling from the Juzgado de lo Mercantil 4, Barcelona

Case C-69/09 (Walz/Clickair)

Question referred:

Does the limit of liability referred to in Article 22.2 of the Convention for the Unification of Certain Rules for International Carriage, signed in Montreal on 28 May 1999, include both non-material damage and material damage resulting from the loss of baggage?

Spain's Prado Museum Teams Up With Google Earth

The two have been working on a project that allows people to zoom in on the gallery's main paintings. This is the first of its kind involving an art museum. The project involves 14 of the Prado's best paintings, including Diego Velazquez's Las Meninas, Francisco de Goya's Third of May and Peter Paul Rubens' The Three Graces and you can zoom in on details not normally seen with the human eye. Google Spain says the images on the internet were 1,400 times clearer than what would be rendered with a 10-megapixel camera. 8,200 photographs were taken of the paintings and then combined with Google Earth's zoom-in technology. You can see the images by going to Google, and downloading Google Earth software, type in Prado Museum in the search engine. Once the museum zooms into focus, click on the square with the name of the museum.

UK: Office of Fair Trading warns holidaymakers of bogus holiday clubs

The OFT is warning holidaymakers flying out to Spain about the dangers of bogus holiday club scams which cost UK consumers millions of pounds a year. Research has shown that this is a peak time for consumers being targeted by bogus holiday clubs, with the average victim losing over £3000. Every year thousands of UK consumers fall for this type of scam at resorts such as Benalmadena, Fuengirola and Marbella on the Costa del Sol, and in the Canary Islands. Consumers are typically targeted by 'scratchcard touts' who hand out bogus winning cards to holidaymakers. To collect their prize they are forced to attend a lengthy presentation and persuaded into signing a contract for an 'exclusive' club on the basis of false claims as to the price, range and quality of holidays available. After spending thousands of pounds, consumers often find they have bought little more than access to an internet booking service offering the same service they could get at a high street travel agent.

Source: OFT press release; full text here>>.

World Economic Forum’s Travel & Tourism Report Highlights the Importance of Environmental Sustainability

Switzerland, Austria and Germany have the most attractive environments for developing the travel and tourism industry, according to the second annual Travel & Tourism Competitiveness Report 2008, released today by the World Economic Forum. Australia, Spain, the United Kingdom, the United States, Sweden, Canada and France complete the top-10 list. The rankings cover 130 countries around the world.
Improvements have been made to the Travel & Tourism Competitiveness Index (TTCI) this year. The “environmental regulation” pillar has been revised and improved as well as being re-named the “environmental sustainability” pillar to better reflect its components and to capture the increasingly recognized importance of sustainability in the sector’s development.
The TTCI measures the factors and policies that make it attractive to develop the T&T sector in different countries. It is composed of 14 pillars of travel and tourism competitiveness:

1. Policy rules and regulations
2. Environmental sustainability
3. Safety and security
4. Health and hygiene
5. Prioritization of travel and tourism
6. Air transport infrastructure
7. Ground transport infrastructure
8. Tourism infrastructure
9. Information and communication technology (ICT) infrastructure
10. Price competitiveness
11. Human capital
12. Affinity for travel & tourism
13. Natural resources
14. Cultural resources

This cross-country analysis of the drivers of competitiveness in travel and tourism provides useful comparative information for making business decisions and additional value to governments wishing to improve their travel and tourism environments.

Source: World Economic Forum; read full press release here.

Note that "Policy rules and regulations" is regarded the first pillar - thus in my opinion emphasising the importance of a legal frame i.e. travel and tourism law.

Spain: 15th Century Spanish Maps Stolen from Madrid now recovered by FBI

The FBI announced the return of two 15th century maps that were stolen from the Spanish National Library in Madrid, Spain, earlier this year. The FBI assisted in the recovery of the maps at the request of the Spanish National Police and Civil Guard. The two maps, from an edition of Ptolemy's Geographia, were recovered by a special agent assigned to the New York FBI's major theft squad and the FBI's Art Crime Team. Director Robert S. Mueller, III, presented the maps today to Joan Mesquida Ferrando, Director General of the Spanish National Police and Civil Guard in a ceremony at FBI Headquarters.

Read full article here.

Iberia cuts Cuba ad after sexism complaint

Spanish airline Iberia has cut an advertisement showing black Cuban women in bikinis bottle feeding a baby tourist as he sings "feed me mulattas ... come on little mamas, take me to my cot" after complaints it was sexist. A consumer rights group demanded Iberia, Spain's national flag carrier, pull the ad for online sales as it was offensive to Cuban women and could encourage sex tourism.

Source: scotsman.com, read whole article here.

Spain: airline in crisis

Air Madrid has suspended all of its flights leaving thousands of passengers stranded over Christmas.It is reported between 200,000 and 300,000 passengers could be abandoned as a result of the airline's action. Its main destinations are Buenos Aires, Sao Paolo and Mexico. The independent carrier is blaming its actions on a development ministry threat to suspend its licence. The budget airline said ticket sales had fallen dramatically since the announcement from the development ministry and suppliers had refused it credit. The ministry said that Air Madrid had not fully carried out an action plan to cut delays, saying it would have to present new information to support its case to keep flying.

Read more here.

Court of Justice Finds Distribution of a Signal by Means of TV Sets by a Hotel to its Customers Protected by Copyright

The SGAE (the body responsible for the management of intellectual property rights in Spain) took the view that the use of television sets and the playing of ambient music within the hotel owned by Rafael Hotels SA involved communication to the public of works belonging to the repertoire which it manages. Considering that those acts gave rise to breach of copyright, SGAE brought an action before the Spanish courts. The Audiencia Provincial (Provincial Court) of Barcelona referred the matter to the Court of Justice. In the decision of 7th Dec. 2006 (Case C-306/05), the Court pointed out, that the concept of ‘communication to the public’ had to be interpreted broadly in order to achieve the principal objective of the directive, that is to establish a high level of protection in favour, amongst others, of authors, allowing them to obtain an appropriate reward for the use of their works, in particular when these were communicated to the public. It was necessary to take into account the fact that, usually, hotel customers quickly succeed each other. As a general rule, a fairly large number of persons are involved, so that they may be considered to be a public, having regard to the principal objective of the directive. Therefore, if, by means of television sets thus installed, the hotel distributed the signal to customers staying in its rooms or present in any other area of the hotel, a communication to the public took place, irrespective of the technique used to transmit the signal. The private or public nature of the place where the communication takes place was immaterial.
Source: ECJ Press Release 95/06,
http://curia.europa.eu/en/actu/communiques/cp06/aff/cp060095en.pdf

(Originally posted by Michael Wukoschitz)

Increasing The Cases In Which Damages Resulting From Food Poisoning Are Recovered

There is an incresing number of Spanish cases in which restaurants are found liable by the Courts because of serving unsafe food. When a person becomes ill after ingesting contaminated food, he/she can be compensated for the damage. In some cases victims also receive a compensation for mental distress, particularly when foodborne illness occurs in a wedding banquet (e.g SAP Asturias, 14-10-2004, Sección 7ª, AC 20042040; SAP Álava, 14-5-2004, Sección 2ª, JUR 2004279526; SAP Granada, 2-2-2004, Sección 4ª, JUR 2004102397; SAP Burgos, 8-7-2003, Sección 2ª, JUR 200446581; SAP Salamanca, 19-6-2002 Sección Única, JUR 2002193204; SAP Murcia, 4ª 2-11-2001, JUR 200240201; SAP Las Palmas, 9-7-2001, Sección 3ª, JUR 200229831; SAP Burgos, 29-3-2001, Sección 2ª, JUR 2001141464)

(Originally posted by Josep M. Bech Serrat)

Gerona Action Group formed after Crash

235 Welsh passengers walked free when their holiday aircraft from Cardiff broke into three pieces as it lurched off the runway at Gerona Airport on Tuesday 14 September 1999. One 83 year old passenger died three days later at his hotel. The Gerona Action Group has been established by a firm of lawyers in response to a request by 30 of the passengers. The aim of the group is to ask questions about the safety of holiday airports. Passengers claimed that it took emergency services one hour to come to their assistance. The Spanish authorities deny that it took so long but point to the poor visibility at the time which meant that it took them 10 minutes before they realised that the jet had left the runway and even longer to locate the plane.

(Originally posted by John Downes)