16TH FEBRUARY 1994, LAW GOVERNING ORGANISED TRAVEL CONTRACTS AND TRAVEL AGENCY CONTRACTS

Transcription

1 16TH FEBRUARY 1994, LAW GOVERNING ORGANISED TRAVEL CONTRACTS AND TRAVEL AGENCY CONTRACTS CHAPTER 1 - DEFINITIONS AND AREA OF APPLICATION Article 1 - For the purpose of application of this law, the following definitions must be understood: 1. Organised travel contract: any contract under which a person undertakes in his own name to obtain for another, for a lump sum, at least two of the following three services: a) transport, b) lodging, c) other tourist services not linked with transport or lodging which are not accessory to the transport or lodging, in a combination previously organised by the said person and/or by a third party, on condition that the services include an overnight stay or exceed a period of 24 hours. The separate invoicing of different parts of a single lump sum does not release the travel organiser or travel agency from the obligations of this law; 2. Travel agency contract: any contract under which a person undertakes to obtain for another, for payment of a price, either a travel organisation contract or one or more isolated services making it possible to complete any journey or period of stay; 3. Travel organiser: any person acting as seller in accordance with the law of 14th July 1991 on trade practice and consumer information and protection, selling or offering for sale the combination described in 1. above, whether directly or with the assistance of a travel agent; 4. Travel agent: any person acting as seller in accordance with the law of 14th July 1991 on trade practice and consumer information and protection, who enters into the undertaking referred to in 2. above; 5. Traveller: any person who benefits from the undertaking referred to in 1. or 2. above, whether the contract has been entered into or the price paid by or for such person. Article 2 - l.this law is applicable to travel agency and organisation contracts sold or offered for sale in Belgium. 2. If a travel agent acts as agent for a travel organiser not established in Belgium, he is considered as the travel organiser in relation to the traveller. Article 3 - Without prejudice to the provisions of articles 19 and 28, any clause contrary to this law or to the decrees on its implementation is invalid if it limits the rights of the traveller or adds to his obligations.

2 CHAPTER 2 - ON TRAVEL PROMOTION Article 4 - The description of the services referred to in Article 1.1 and 2, as given to the traveller, their price and all other conditions applicable to the contract shall not contain any fraudulent information. Article 5 - If a brochure is made available to travellers, it must state clearly, legibly, accurately and unambiguously the price and details of: 1. The destination, means, characteristics and categories of transport used; 2. The type of lodging, its situation, category or level of comfort and main characteristics, its tourist classification and approval, according to the regulations of the country visited; the traveller's attention must be drawn to the difference between this classification and current legislation in Belgium; 3. The type and number of meals included; 4. Description of the itinerary; 5. General information regarding passports and visas as well as the health formalities necessary for the travel and stay; 6. The amount or percentage of the price to be paid as a down payment and the schedule for payment of the balance; 7. Notice that a minimum number of people is required for the journey to take place, and, in this case, the fast date when the traveller will be informed in the case of cancellation; 8. Useful information regarding taking out a cancellation and/or assistance insurance; 9. The type of travel and the public for which it is intended. Article 6 - The information contained in the travel brochure is binding upon the organiser or travel agent who has drawn up the said brochure, unless: changes in this information have been clearly notified to the traveller in writing prior to the contract being entered into; the brochure must state this clearly; modifications are made at a later date, following a written agreement between the parties to the contract. CHAPTER 3 INFORMATION Article 7 - The travel organiser and/or travel agent shall be bound: 1. Prior to the travel agency or organisation contract being entered into, to notify the traveller in writing of: a) general information regarding passports and visas as well as health formalities necessary for the travel and stay; b) the contractual conditions applicable to the contract; c) information on the taking out and content of a cancellation and/or assistance insurance; 2. Before the beginning of the journey, at latest seven days before the departure date, to supply the travellers in writing with the following information: a) timetables, stopovers and changeovers as well as the seat to be occupied by the traveller; b) the name, address and telephone and fax numbers of the local representative of the organiser and/or travel agent, or failing this, the name, address and telephone and fax number of the local organisations able to assist the traveller if there are problems. Where such representatives and organisations do not exist, the traveller must be given a telephone or

3 fax number permitting him to make contact as quickly as possible with the travel organiser or agent; c) for journeys and stays of minors abroad, information making it possible to establish a direct contact with the child or person responsible at the place of his stay. The period of seven days referred to 2. above is not applicable if the contract is entered into late. Article 8 - The traveller must supply the organiser and/or travel agent with all useful information for which he is specifically asked. CHAPTER 4 - THE TRAVEL ORGANISATION CONTRACT SECTION 1 - WORDING OF THE CONTRACT Subsection 1 - Form and content of contract Article 9 - When the journey is booked, the travel agent or organiser must issue the traveller with an order form in accordance with the law of 14th July 1991 on commercial practice and consumer protection and information. The travel organisation contract comes into force as soon as the traveller receives the written confirmation of the booking issued by the travel organiser, whether or not through a travel agent acting in the name of the latter. If the content of the order is different from that of the travel confirmation, or if the confirmation is not given at latest within 21 days of signature of the order form, the traveller can assume that the journey has not been reserved and will be entitled to immediate reimbursement of all sums already paid. Article The order form and travel contract state at least: 1. place and date of signature; 2. name and address of organiser and/or travel agent; 3. name and address of the body guaranteeing the services of the travel organiser and/or travel agents; 4. the traveller's name and address and, if necessary, the beneficiary third party/ies; 5. the place and date of the start and end of the travel and stay, and, if these cover different staying periods, the various periods and dates; 6. the means, characteristics and categories of transport used, the dates, times and places of departure and return; 7. the lump sum covering ail the sendees provided for in the contract; 8. information regarding any price revision and the exact method of calculation; 9. the schedule and methods of payment of the price; 10. any special requirements of which the traveller has informed the organiser or travel agent when booking the journey; 11. conditions of termination of the contract; 12. conditions of cancellation of the contract by the traveller and travel agent/organiser; 13. the methods and periods in which the traveller must make any claims for default or incorrect execution of the contract; 14. the conditions of a cancellation insurance, assistance insurance, and/or any other insurance, as well as the name and address of the insurance company or precise details of the page in the brochure where this information is given. 2. The contract shall also give the following details, if relevant to the contract in question: 1. when the travel includes lodging: its location, tourist category or level of comfort and main characteristics, and its compliance with regulations in the country of stay; the traveller's attention must be drawn to the difference between this classification and current legislation in Belgium;

4 2. the type and number of meals included; 3. the minimum number of people required for the travel contract to be executed and the last date for informing the traveller in the case of cancellation; this deadline for cancellation must not be more than15 days prior to departure; 4. description of the itinerary; 5. visits, excursions or other services included in the total price agreed; 6. any special requirements of the traveller which have been accepted by the travel organiser. 3. If the information provided for in 1. and 2. is given in full or in part in a programme, a travel brochure made available to the traveller or the order form, the travel contract may contain a simple reference to this programme, travel brochure or order form; any modification of the programme or travel brochure must be mentioned in the travel contract. The receipt of the programme or brochure by the traveller shall be specifically mentioned in the contract. Subsection 2 - price Article The price agreed in the contract is not subject to revision unless the contract provides for this expressly, stating the precise method of calculation and on condition that revision takes place as a result of the following variations: a) exchange rates apply to the journey and/or b) the cost of transport including, fuel charges, and/or c) taxes and duties relating to certain services. In this case, the variations referred to will also give rise to a price reduction. 2. The price laid down in the contract can in no case be increased during the 20 days prior to the departure date. 3. If the increase is in excess of the total price, the traveller may cancel the contract without compensation. In this case, the traveller shall be entitled to immediate reimbursement of all the sums he has paid to the travel organiser. 4. Payment of the balance of the price can only be demanded from the traveller if he has already received or receives simultaneously written confirmation of the journey and/or travel documents. Subsection 3 - Transfer of the booking Article 12 - The traveller may, prior to the beginning of the journey, transfer his journey to a third party who must meet all the conditions of the travel organisation contract. The transferor must inform the travel organiser and, if any, the travel agent, of this transfer, with sufficient notice prior to departure. A traveller who transfers his journey and the party to whom it is transferred are jointly responsible for payment of the total price of the journey and the costs of the transfer. Section 2 - Execution of the travel organisation contract Subsection 1 - Journey not carried out or modification of an essential element by the travel organizer Article 13 - If, prior to the departure, one of the essential elements of the contract cannot be carried out, the travel organiser must inform the traveller of this as quickly as possible, in any case prior to departure, and advise him of the possibility of cancelling the contract without penalty, unless the traveller accepts the modification proposed by the travel organiser. The traveller must notify the agent or travel organiser of his decision as quickly as possible and in any case prior to departure.

5 If the traveller accepts the modification, a new contract or an additional clause should be drawn up stating the modifications made and their effect on the price. If the traveller does not accept the modification, he can request application of article 14. Article If the travel organiser cancels the contract before the start of the journey due to circumstances not imputable to the traveller, the latter can choose between: 1. Either accepting another offer of equivalent or higher quality, without having to pay any supplement; if the journey offered as replacement is of lower quality, the travel organiser must reimburse the traveller the difference in price as quickly as possible; 2. Or repayment as quickly as possible of all sums paid by him under the contract. 2. The traveller may also, if necessary, demand compensation for failure to execute the contract, unless: the travel organiser cancels the journey because the minimum of travellers required by the contract and necessary for its execution has not been reached and the traveller has been informed of this in writing within the period laid clown in the contract at least 15 days prior to the departure date; a) the cancellation is the consequence of an Act of God, not including overbooking. Act of God is understood as abnormal and unforeseeable circumstances beyond the control of the arty who puts them forward, the consequences of which could not be avoided in spite of all due action taken. Article 15 - If it appears during the journey that a major part of the services covered by the contract can not be carried out, the travel organiser takes all necessary steps to offer the traveller appropriate substitutes free of charge in order to continue the journey. In the case of difference between the services provided for and the services actually provided, he compensates the traveller for this difference. When such arrangements are impossible or the traveller does not accept the substitutes for valid reasons, the travel organiser must supply him with an equivalent means of transport which will take him to the departure place and shall be bound if necessary to compensate the traveller. Subsection 2 - Cancellation by the traveller Article 16 - The traveller may cancel all or a part of the contract at any time. If the traveller cancels the contract for a reason imputable to him, he shall compensate the travel organiser and the travel agent for the loss suffered as a resuit of the cancellation. The compensation may not be more than the price of the journey. Subsection 3 - Responsibility of the travel organiser Article 17 - The travel organiser is responsible for the proper execution of the contract in accordance with the expectations which the traveller may reasonably have on the basis of the provisions of the travel organisation contract and the obligations arising from it, independently of the fact that these obligations must be fulfilled by him or other service providers, without prejudice to the travel organiser's right to pursue the other service providers responsible. The travel organiser is responsible for the actions and negligence of his staff and representatives, acting in the execution of their work, as much as for his own actions and negligence.

6 Article The travel organiser is responsible for any damage suffered by the traveller due to failure to comply with all or part of his obligations. 2. He is not responsible if: 1. The failures noted in execution of the contract are imputable to the traveller; 2. Unforeseeable or insurmountable failures are imputable to a third party who is alien to the services provided for in the contract; 3. The failures are imputable to an Act of God as defined in Article 14, 2 b); 4. The failures are imputable to an event which the travel organiser could neither foresee nor avoid even with the greatest caution, not including overbooking. 3. In the cases referred to in 1. and 2., the travel organiser shall be bound, throughout the execution of the contract, to take care to aid and assist the traveller in difficulties. The travel organiser may, in the cases referred to in 2., if necessary charge the costs incurred to the traveller. Article The travel organiser shall not exclude or limit his responsibility for damage caused by death or injury of the traveller. 2. The travel organiser shall not exclude or limit his responsibility for non physical injury arising from his actions or negligence, intention to cause harm or serious default. 3. If a service covered by the travel contract is subject to application of an international agreement, the travel organiser may exclude or limit his responsibility in accordance with the international agreement governing these services. 4. The travel organiser shall also be bound, in the case of failure to comply with any of his obligations, to provide fair compensation for the lack of enjoyment of the journey. 5. If he does not himself supply the services included in the travel contract, the travel organiser may limit his responsibility with regard to material damage and compensation for loss of enjoyment of the journey to double the price of the journey. Subsection 4 - Obligations of the traveller Article 20 - Any failure in execution of the contract noted directly by the traveller must be notified by the traveller as soon as possible in writing or in any other suitable form to the providers of the local services in question. He must in any case confirm his claim by registered letter to the organiser and/or travel agent, at latest one month after the end of the journey. He may, for this purpose, use the relevant form which has been handed over to him at the same time as the travel documents or which is available locally and will be handed over to him on request. CHAPTER 5 - THE TRAVEL AGENT'S CONTRACT Article 21 - Any contract entered into by the travel agent with a travel organiser or with persons supplying individual services is considered as having been entered into by the traveller.

7 Article 22 - As well as the obligation of information provided for in Chapters 2 and 3 of this law, the travel agent has a general advisory obligation. Section 1 - Wording of the travel agency contract Article Any sale by a travel agent of a service of travel or stay or other service must be covered by a contract, unless it relates solely to transport. The travel agent shall provide the traveller with a copy of the contract. 2. This contract must mention at least: 1. the place and date of signature; 2. the name and address of the travel agent; 3. the name and address of the body guaranteeing the travel agent's services; 4. the name and address of the traveller and, if necessary, of beneficiary third party/ies; 5. the place and date of the start and end of the travel and stay, and, if these cover different staying periods, the various periods and dates; 6. the means, characteristics and categories of transport used, the dates, times and places of departure and return; 7. the total price covering all the services provided for in the contract; 8. information regarding any price revision and the exact method of calculation; 9. the schedule and methods of payment of the price; 10. any special requirements of which the traveller has informed travel agent when booking the journey; 11. conditions of termination of the contract; 12. conditions of cancellation of the contract by the traveller and travel agent; 13. the methods and periods in which the traveller must make any claims for default or incorrect execution of the contract; 14. the conditions of a cancellation insurance, assistance insurance, and/or any other insurance, as well as the name and address of the insurance company or precise details of the page in the brochure where this information is given. 3. the contract shall also give the following details, if relevant to the contract in question: 1. when the travel includes lodging: its location, tourist category or level of comfort and main characteristics, and its compliance with regulations in the country of stay, the traveller's attention must be drawn to the difference between this classification and current legislation in Belgium; 2. the type and number of meals included; 3. description of the itinerary; 4. visits, excursions or other services included in the total price agreed; If the information is given in full or in part in a programme, a travel brochure made available to the traveller or the order form, the travel contract may contain a simple reference to this programme, travel brochure or order form; any modification must be mentioned in the contract. Receipt of the programme or brochure by the traveller must be specifically mentioned in the contract. 4. When the travel agent's contract relates to a travel organisation contract, it falls under application of articles 9. and 10., as well as the name and address of the travel organiser, the name and address of the travel agent and his action as agent for the travel organiser are mentioned. If the travel agent does not comply with his obligation, he should be considered as being the travel organiser. Article 24 - Articles 11 (price revision) and 12 (transfer of booking) are applicable to the travel agent's contract.

8 Section 2 - Execution of the travel agent's contract Subsection 1 - Cancellation of contract by the travel agent Article 25 - If the travel agent cancels the contract before the beginning of the journey due to circumstances not imputable to the traveller, the latter shall have the choice between: Either accepting another offer of equivalent or higher quality, without having to pay any supplement. If the offer is of inferior quality, the travel agent must reimburse the traveller with the difference in price as soon as possible; Or reimbursement, as soon as possible, of all sums paid by him under the contract. Subsection 2 - Cancellation by the traveller Article 26 - The traveller may at any time cancel ail or part of the contract. If the traveller cancels the contract for a reason imputable to him, he shall compensate the travel agent for the loss suffered as a result of the cancellation. The compensation may not be more than the price of the journey. Subsection 3 - Responsibility of the travel agent Article 27 - The travel agent is responsible for the proper execution of the contract in accordance with the reasonable expectations of the traveller on the basis of the provisions of the travel agent's contract. The travel agent is responsible for any error made in the execution of his obligations. He is not responsible if: 1. The failures noted in execution of the contract are imputable to the traveller; 2. Unforeseeable or insurmountable failures are imputable to a third party who is alien to the services provided for in the contract; 3. The failures are imputable to an Act of God as defined in Article 14, 2 b); 4. The failures are imputable to an event which the travel organiser could neither foresee nor avoid even with the greatest caution, not including overbooking; 5. In all these cases the travel agent shall be bound, throughout the execution of the contract, to take care to aid and assist the traveller in difficulties; 6. The travel agent may, if necessary, charge 1he costs borne to the traveller. Article 28 - Article 19 is also applicable to the travel agency contract. Subsection 4 - Obligations of the traveler Article 29 - Article 20 is also applicable to the travel agency contract.

9 CHAPTER 6 - ACTIONS AT LAW Article Actions to which a travel contact subject to this law may give rise, for reasons of death, injury or other harm to the physical or mental health of a traveller, have two years' prescription; the period of two years starts on the date when the contract stated that the service giving rise to the dispute should end. In the case of injury or other harm to the physical or mental health causing the death of the traveller after the date when the contract stipulated that the service which gave rise to the dispute ended, the period, however, commences on the date of the death, but may not exceed three years from the date of the end of the service, as provided for in the contract. 2. Actions to which a contract subject to this law gives rise other than those provided for in paragraph 1 above, are prescribed by one year, the period of one year starts on the date when the contract stated that the service giving rise to the difference should end. CHAPTER 7 SANCTIONS Section 1 Action Article 31 - The Presiding Judge at the Court of Commerce notes the existence and orders the cessation of actions, even subject to criminal law, constituting a breach of the provisions of this law. The provisions of the law of 14th July 1991 on commercial practice and consumer protection and information with regard to actions for cessation are applicable to this law. Section 2 - The warning procedure Article 32 - When it is found that an action constitutes a breach of this law or may give rise to an action in cessation at the initiative of the Minister of Economic Affairs, the latter or the agent commissioned by him in application of Article 34 may send the offender a warning giving him notice to end such action, in accordance with the provisions of legislation on commercial practice relating to the warning procedure. The warning is notified to the offender within three weeks of the event being noted, by registered letter with acknowledgement of receipt or by the handing over of a copy of the report stating the facts. The warning states: 1. the alleged events and the legal clause/s infringed; 2. the period within which this must be terminated; 3. that if the warning is not heeded, either the Minister will bring an action for cessation, or the agents commissioned in application of Articles 34 and 35 may respectively advise the Public Prosecutor or settle the matter by compromise as per Article 35. Section 3 - Criminal sanctions Article 33 - Parties committing breaches of the clauses of Articles 5, 7, 9.1, 10, 11, 12 and 23 of this law as well as the clauses of the decrees taken in implementation of Articles 39 and 41 of this law shall be punished by a fine of ,000 francs. Parties who intentionally commit a breach of the provisions of Article 4 of this law are punished with a fine of ,000 francs.

10 CHAPTER 8 - ON FINDING AND RECORDING BREACHES Article 34 - Without prejudice to the duties of the criminal investigation department, the agents commissioned by the Minister of Economic Affairs are competent to seek and record the infringements provided for in this law. The reports drawn up by these agents shall have legal force until proven otherwise. The provisions regarding seeking and recording infringements provided by legislation on commercial practice are also applicable to this law. Article 35 - The agents commissioned for this purpose within the framework of the legislation on commercial practice may, with regard to reports recording infringements of the provisions of Article 33 drawn up by the agents referred to in Article 34.1, give the offenders the opportunity to pay a sum which will prevent their being taken to court. The tariffs and methods of payment and receipt are as laid down by the King within the framework of legislation on commercial practice. CHAPTER 9 - FINAL CLAUSES Article 36 - Travel agents and/or organisers who are parties to contracts must prove that they hold sufficient guarantees to ensure compliance with 1heir obligations to the traveller in the case of financial insolvency. They should ensure that the amounts already paid can be reimbursed to the traveller and, if the journey has already started, provide for his repatriation. The King may lay down the manner and conditions of such guarantees. Article 37 - The travel organiser and agent must take out an insurance covering their professional liability towards the traveller. The King decides the conditions of this insurance and who shall control it. Article 38 - The King can create a litigation commission of which he shall determine the organisation, functions and composition. Article 39 - The King may prepare a typical travel contract as well as a model of general conditions, and may demand use of these. Article 40 - The law of 30th March 1973 approving the International Convention on Travel Contracts (CCV) of 23rd April 1978 is repealed after the official notice by the Belgian Government of the International Convention on travel contracts of 23rd April 1970, in its Article 37, as from the date when this official notice takes effect. As long as the law of 30th March 1973 approving the International Convention on Travel Contracts remains in force, the King shall determine the categories of traveller to whom this law is applicable. Article 41 - The King may, by decree discussed in council by the Ministers, take the necessary steps due to any default by Belgium with regard to the transposition of the European Directive of 13th June 1990 regarding travel, holidays and package tours. Article 42 - Ail the provisions of this law come into force on the date laid down by the King.