Package Holidays and Travel Trade Act , 1995

PART I Preliminary and General

1. Short title, collective citation and commencement.

(2)The Transport (Tour Operators and Travel Agents) Act, 1982 and this Act may be cited together as the Transport (Travel Trade) Acts, 1982 and 1995.

(3)This Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes or different provisions of this Act.

2. Interpretation.

“the Act of 1982” means the Transport (Tour Operators and Travel Agents) Act, 1982;

“authorised officer” has the meaning assigned to it by section 21;

F1[…]

F1[…]

“contravenes”, in reference to any provision of this Act, includes a failure or refusal to comply with the provision;

“the Directive” means Council Directive No. 90/314/EEC of 13 June 1990^1 on package travel, package holidays and package tours the text of which in the English language is set out for convenience of reference in the Schedule to this Act;

“the Director” means the Director of Consumer Affairs;

F2["Directive" means Directive (EU) No. 2015/2302 of the European Parliament and the Council of 25 November 2015 on package travel and linked travel arrangements;

"durable medium" means any instrument which enables the traveller or the trader to store information addressed personally to him or her in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;

"establishment" shall be construed in accordance with Article 49 of the Treaty on the Functioning of the European Union and means the actual pursuit of an economic activity, as referred to in that Article, by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out and, in this Act, a reference to an organiser or a retailer being “established” is to be construed accordingly;]

“functions” includes powers and duties;

F2["insolvency" means the organiser or the trader facilitating a linked travel arrangement is unable to, or is failing to, meet its financial or contractual obligations under this Act owed by it to travellers in respect of package travel contracts or linked travel arrangements and that, in relation to that organiser or trader, one or more of the following events has occurred:

(a) a petition is granted by a court for the compulsory winding up of the business of the organiser or trader;

(b) the organiser or trader, by reason of being unable to fulfil its financial obligations, seeks a voluntary winding up of the business or has convened a meeting of the creditors of the organiser or trader, for the purpose of considering a settlement of the liabilities of the organiser or trader to its creditors;

(c) a receiver is appointed over the assets of the organiser or trader;

(d) the organiser or trader has failed to discharge its debts or is unable to discharge those debts or has ceased to carry on business by reason of the inability to discharge those debts;

(e) the organiser or trader has committed an act of bankruptcy;

(f) the Commission for Aviation Regulation has reasonable grounds for believing that, having regard to all the circumstances, the organiser or trader is unable to, or has failed to, carry out the obligations under this Act owed by it to travellers in respect of package travel contracts or linked travel arrangements;

"insurance undertaking" means a person who carries out non-life insurance business authorised under the European Communities (Non-Life Insurance) Framework Regulations 1994 ( S.I. No. 359 of 1994 ) or under the European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015);

"lack of conformity" means a failure to perform or improper performance of the travel services included in a package;

"linked travel arrangement" means at least two different types of travel services purchased for the purpose of the same trip or holiday, not constituting a package, resulting in the conclusion of separate contracts with the individual travel service providers, if a trader facilitates—

(a) on the occasion of a single visit or contact with the trader’s point of sale, the separate selection and separate payment of each travel service by travellers, or

(b) in a targeted manner, the procurement of at least one additional travel service from another trader where a contract with such other trader is concluded not later than 24 hours after the confirmation of the booking of the first travel service,

but where—

(i) not more than one type of travel service referred to inparagraphs (a),(b)or(c)of the definition of ‘travel service’ and

(ii) one or more tourist services referred to inparagraph (d)of that definition,

are purchased, those services do not constitute a linked travel arrangement if the tourist services referred to inparagraph (d)of that definition do not exceed 25 per cent of the combined value of the services and are not advertised as, and do not otherwise represent, an essential feature of the trip or holiday;]

“the Minister” means the Minister for Transport, Energy and Communications;

“offer” includes an invitation to a person, whether by means of advertising or otherwise, to make an offer to buy a package;

F3["organiser" means a trader who combines and sells or offers for sale packages, either directly or through another trader or together with another trader, or a trader who transmits the traveller’s data to another trader in accordance withparagraph (b)(v)of the definition of ‘package’ in this subsection;]

F4["package" means a combination of at least two different types of travel services for the purpose of the same trip or holiday, if—

(a) those services are combined by one trader, including at the request of or in accordance with the selection of the traveller, before a single contract on all services is concluded, or

(b) irrespective of whether separate contracts are concluded with individual travel service providers, those services are—

(i) purchased from a single point of sale and those services have been selected before the traveller agrees to pay,

(ii) offered, sold or charged at an inclusive or total price,

(iii) advertised or sold under the term ‘package’ or under a similar term,

(iv) combined after the conclusion of a contract by which a trader entitles the traveller to choose among a selection of different types of travel services, or

(v) purchased from separate traders through linked online booking processes where—

(I) the name, payment details and e-mail address of the traveller are transmitted from the trader with whom the first contract is concluded to another trader or traders, and

(II) a contract with the latter trader or traders is concluded not later than 24 hours after the confirmation of the booking of the first travel service,

but a combination of travel services where not more than one type of travel service referred to inparagraph (a),(b)or(c)of the definition of "travel service" is combined with one or more tourist services referred to inparagraph (d)of that definition is not a package if the latter tourist service or services—

(a) do not exceed 25 per cent of the value of the combination and are not advertised as and do not otherwise represent an essential feature of the combination; or

(b) are selected and purchased only after the performance of a travel service referred to inparagraph (a),(b)or(c)of the definition of ‘travel service’ has started;]

F1[…]

F2["package travel contract" means a contract on the package as a whole or, if the package is provided under separate contracts, all contracts covering travel services included in the package;

"point of sale" means—

(a) any retail premises, whether movable or immovable,

(b) a retail website or similar online sales facility, including where retail websites or online sales facilities are presented to travellers as a single facility, or

(c) a telephone service;]

“premises” includes any building, dwelling, temporary construction, vehicle, ship or aircraft;

“record” means any book, document or any other written or printed material in any form including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form;

F5["repatriation" means the traveller’s return to the place of departure or to another place the contracting parties agree upon;]

F6["retailer" means a trader other than the organiser who sells or offers for sale packages combined by an organiser;]

F2["start of the package" means the beginning of the performance of travel services included in the package;

"trader" means a natural person or legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in the name of the trader or on behalf of the trader, for purposes relating to the trader’s trade, business, craft or profession in relation to contracts to which this Act applies, whether acting in the capacity of organiser, retailer, trader facilitating a linked travel arrangement or as a travel service provider;

"travel service" means—

(a) the carriage of passengers,

(b) accommodation which is not intrinsically part of carriage of passengers and is not for residential purposes,

(c) the rental of—

(i) cars,

(ii) other motor vehicles within the meaning of Article 3(11) of Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007^2, or

(iii) motorcycles requiring a Category A driving licence in accordance with Regulation 9(1), (3) and (4) of the Road Traffic (Licensing of Drivers) Regulations 2006 ( S.I. No. 537 of 2006 ), or

(d) any other tourist service not intrinsically part of a travel service within the meaning ofparagraphs (a),(b)or(c);

"traveller" means any person who is seeking to conclude a contract, or is entitled to travel on the basis of a contract concluded, within the scope of this Act;

"unavoidable and extraordinary circumstances" means a situation beyond the control of the party who seeks to rely on such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken.]

(2)F7[…]

F8[(3)(a)Subject toparagraph (b), this Act applies to packages offered for sale or sold by traders to travellers and to linked travel arrangements facilitated by traders for travellers.

(b)This Act does not apply to:

(i)packages and linked travel arrangements covering a period of less than 24 hours unless overnight accommodation is included;

(ii)packages offered for sale or sold, and linked travel arrangements facilitated, occasionally and on a not-for-profit basis for a limited group of travellers;

(iii)packages and linked travel arrangements purchased on the basis of a general agreement for the arrangement of business travel between a trader and another person who is acting for purposes relating to the latter person’s trade, business, craft or profession.]

(4)In this Act—

(a)a reference to a section or a Part is a reference to a section or a Part of this Act unless it is indicated that a reference to some other enactment is intended;

(b)a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

(5)In this Act a reference to any enactment shall be construed as a reference to that enactment, as adapted or extended by or under any subsequent enactment including this Act.

(6)A word or expression that is used in this Act and is also used in the Directive has, unless the contrary intention appears, the meaning in this Act that it has in the Directive.

(7)In construing a provision of this Act, a court shall give to it a construction that will give effect to the Directive and, for this purpose a court shall have regard to the provisions of the Directive including its preamble.

3. Organiser.

4. Expenses.

5. Fees.

6. Offences.

(2)A person who commits an offence underF12[section 22(11)or22A(15)]is liable—

(a)on summary conviction to a class A fine, or

(b)on conviction on indictment, to a fine not exceeding €250,000.]

(3)Where an offence under this Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of, or to have been facilitated by any neglect on the part of any director, manager, secretary or other similar officer of such body or of any person who was purporting to act in any such capacity, that officer or person, as well as such body, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the first mentioned offence.

(4)No contract shall become enforceable or unenforceable and no right of action in civil proceedings in respect of any loss shall arise by reason only of the commission of an offence under section 22 F13[or22A].

7. Proceedings.

F14[(2)Summary proceedings may be brought and prosecuted by the Commission for Aviation Regulation in respect of an offence under—

(a)sections 21and26, and

(b)sections 22and22A, only in so far as the offence relates to the provision of security for packages or linked travel arrangements for the carriage of passengers referred to inparagraph (a)in the definition of ‘travel services’ outside the State and Northern Ireland, irrespective of whether or not the carriage commences in the State or in another Member State.]

(3)Nothwithstanding the provisions of section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be commenced at any time within F15[2 years] from the date on which the offence was committed.

(4) (a)Where a judge of the District Court proposes to make an order for the release on bail of a defendant charged with an offence under this Act or the Act of 1982 who is ordinarily resident outside the State, the judge may (unless satisfied that all documents required by law to be served on the defendant in connection with or for the purpose of the charge or of any proceedings arising out of or connected with the charge can be duly served on the defendant in the State) direct that those documents may, in lieu of being served on the defendant, be served on a person specified in the direction who is ordinarily resident in the State.

(b)Service of a document referred to in this subsection on a person specified in the direction shall be deemed for all purposes to be served on the defendant.

(5)In the case of a person ordinarily resident, or a body corporate established, outside the State service of documents relating to the charge may be effected by being served either on the person to be charged or on a person being a nominated agent under section 10 (1) (i) F16[…].

(6)A body corporate may be sent forward for trial on indictment for an offence under section 21, 22 (3) or 26 with or without recognisances.

(7)Where a person is convicted of an offence under this Act, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Minister or the Director, as the case may be, the costs and expenses, measured by the court, incurred by the Minister or the Director, as the case may be, in relation to the investigation, detection and prosecution of the offence.

(8)The provisions of section 382 of the Companies Act, 1963, shall extend to every body corporate (whether or not a company within the meaning of that Act) charged on indictment with an offence under section 21, 22 (3) or 26.

8. Particular functions of Director.

(a)request persons engaging in or proposing to engage in such practices, business or activities as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act to refrain from such practices, business or activities;

(b)institute proceedings in the High Court for orders requiring persons engaging or proposing to engage in any practices, business or activities as are, or are likely to be, contrary to the obligations imposed on them by any provision of this Act to discontinue or refrain from such practices, business or activities.

9. Laying of regulations before Houses of Oireachtas.

PART II Regulation of Travel Contract

10. Brochure content.