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Foreword

Bruce Treloar, CTSI Lead Officer for Holiday and Travel Law

The introduction of the Package Travel and Linked Travel Arrangements Regulations 2018 (2018 PTRs) presents major changes for businesses. Package holidays and Linked Travel Arrangements (LTAs) are often complex combinations of travel services which include transport and accommodation but may also include other services such as car hire and significant ‘other tourist services’ such as excursions. Different service providers, for example airlines and hotels, are often involved and a problem with the delivery of one service may affect the delivery of the others.

The 2018 PTRs do not cover day trips (under 24 hours and not including overnight accommodation); packages and LTAs which are organised occasionally and on a ‘not for profit basis’ for a limited group of travellers; and finally, situations in which businesses make bookings through contracts with business travel agencies (a business-to-business contract).

Businesses will have to accept that separate selection and purchase of travel services will come under the new rules (for example in the case of a traveller visiting a high street travel agent or online travel agent, paying for a flight and, without leaving the travel agent or moving to another website, deciding to book a hotel to ‘link’ with the flight). Businesses which sell online packages and LTAs will also be affected by the 2018 PTRs. If the business sells a package through a linked online booking process (where the traveller’s name, payment details and email address are sent from the first trader they purchase from toa ‘targeted’ second trader, where a purchase is made no longer than 24 hours after the first service was purchased). For example, a traveller visits an airline website and buys a flight. As the website reaches the payment page, there is a link to a hotel site. The traveller purchases the flight, then clicks on the link and their name, payment details and email address appear on the second site. If they make a hotel booking within the 24-hour period it becomes a package and the airline is the ‘organiser’ of the package. If the traveller’s name, payment details and email address do not appear on the second website and a sale goes ahead within 24 hours, this will make it an LTA.

The 2018 PTRs consider alternative sales of holidays; despite the enduring popularity of the package holiday, tastes in holidays continue to evolve. Mix- and-match options have been facilitated by technological changes and the 2018 PTRs attempted to regulate the new trends.

The UK’s exit from the EU was a constant problem for businesses during 2020 as there was not enough information about the change in insolvency protection (for those UK organisers targeting EU citizens the change was that they would need to comply with the relevant insolvency protection in the Member State they were targeting, rather than just complying with UK insolvency protection) and the real need to understand just what insolvency protection they had to provide for LTAs.  

In 2019 the complaint level grew during the year, showing major businesses were confused by the new regulations, certainly as related to LTAs, the legal requirement for pre-contract and post-contract booking information and changes to insolvency protection. Regulators also found that there was a need to advise businesses that criminal offences would be investigated, under other established legislation (the Consumer Protection from Unfair Trading Regulations and the Consumer Rights Act) to investigate misleading descriptions and terms and conditions relating to package holidays, rather than using the 2018 PTRs where there were no criminal offences for these kinds of breaches.

From January 2019 to December 2019 there were 6,924 holiday complaints, including air travel, and from January 2020 to December 2020 there were 27,371 complaints including air travel. There was no way of identifying exactly how many complaints related to COVID-19, but this obviously accounted for a spike in complaints.

The purpose of this booklet is to provide key points and guidance for business in understanding the requirements of the 2018 PTRs, including case studies of real-life examples where the regulations apply. The new rules highlight offences which could include failure to provide specific information to the traveller before booking a package or LTA and failing to provide specific information when providing the confirmation invoice after making the booking. A business must provide insolvency protection for packages or LTAs and providing false information to release monies held on trust for insolvency cover will also be an offence.

General Introduction

As the UK has now left the EU, all businesses selling packages and LTAs to consumers in the UK, even if they are established in an EU member state, will have to comply with the UK insolvency protection schemes. This will mean that all organisers of flight inclusive packages sold in the UK will need to hold an Air Travel Organiser’s Licence (ATOL). Similarly, organisers of non-flight packages and facilitators of LTAs sold in the UK will need to arrange bonding, insurance or a trust account in accordance with UK rules.

Following the UK’s exit from the EU, the 2018 PTRs do not address the issue of UK-established companies selling packages, or facilitating LTAs, to consumers in other member states. That will be a matter for those member states, but one expects that the position adopted by the UK will be reciprocated in all other member states. This is because the mutual recognition of insolvency protection rules set out in the Package Travel Directive only apply to member states. Accordingly, UK companies will be obliged to take out insolvency protection in accordance with the rules of each member state into which it sells packages or facilitates LTAs. Many of the requirements of the 2018 PTRs will be familiar to those used to organising package holidays. However, the definitions and scope of the requirements mean that it is likely that many more travel companies will have to ensure that their business systems and practices take account of the new rules. There are three main areas of which businesses will need to be aware:

i: Businesses will need to put in place processes and procedures when making sales in travel agencies, on the telephone or on their website, to ensure the relevant information provisions for pre- and post-contract information requirements are met. The 2018 PTRs provide criminal offences if these information provisions are not followed

ii: Businesses will need to provide insolvency protection for the money they take from travellers by holding an ATOL for flight-inclusive packages or non-flight packages, by providing a bond or insurance policy, or by holding the money in a trust account. The 2018 PTRs also require an organiser using a trust account to obtain insurance to ensure that if they collapse when the consumer is on holiday, repatriation will be covered. It is also an offence if the organiser informs their independent trustee that the consumers have returned from their holiday, when they haven’t, to release the money early into the organiser’s trading account.

iii: UK-based travel agents which deal with non-UK organisers will be liable for the proper performance of the package and for insolvency protection, or must provide evidence that the non-UK organiser complies with these requirements. This rule is being expanded so that UK-based retailers will also be liable in the same way for the packages of EEA organisers, unless they can provide evidence that the EEA organiser complies with its duties.

Definitions

'Package'

The major changes in holiday and travel purchases, e.g., online, on the telephone or in travel agencies, were covered by the 2018 PTRs.

This is why there are now six definitions of what constitutes a package holiday. In addition, some travellers wanted to select and purchase travel services separately and the EU introduced the LTA.

i. A package is created when travel services are combined by one trader and sold under a single contract.

These types of packages are traditional packages BUT unlike the previous regulations, there is no mention that the packages must be ‘pre-arranged’ and they will include ‘tailor-made holidays’ or where those services are:

ii. sold in a single booking process.

A package is created when a traveller has selected from the same point of sale two or more travel services and then agrees to pay for them within the same booking process (this is a ‘shopping basket’ model where the point of sale could be high street travel agents, websites or telephone sales).

iii. sold at an inclusive/total price.

For example, a travel agent or organiser puts together a selection of travel services for the same trip and sells it to the traveller for a total price.

iv. sold as a package (or under a
similar term).

For instance, ‘combined-deal’, ‘all inclusive’ or ‘all-in arrangement.

v. combined after the sale of the package allowing subsequent choice (gift-box style packages).

This type of package is a difficult concept. In our view, it relates to arrangements where a trader sells a package that allows a traveller to pick and choose different travel services after they have concluded the contract. For example, a ‘Tastes of the Region’ package that allows you to choose from a selection of accommodation and a meal at a restaurant, to be selected from options, after the package has been purchased.

vi. sold through a linked online booking process, irrespective of whether the traveller concludes separate contracts.

This includes situations where a traveller purchases different travel services for the same trip through a linked online booking process where the traveller’s name, payment details and email address are sent from the first trader they purchase from, to a targeted second trader and a contract is concluded with the second trader no longer than 24 hours after the first service was purchased.

This type of package is created when a traveller goes to e.g., an airline website to buy a flight and on this website is a link to an accommodation provider where the traveller’s name, payment details and email address appear. As long as the traveller purchases within a 24-hour period it will become a package and the airline will become the organiser.

'Travel service'

In order to create a package, you need to sell two or more different travel services, from the four below:

i. Carriage of passengers. This includes flights, trains and coaches.

ii. Accommodation. It is important to note that accommodation that is intrinsically part of carriage of passengers is not in scope. For instance, a ticket on a sleeper train where the purpose is to get from A to B and staying on board is a necessary part of that journey, would not constitute a package.

iii. Motor vehicle hire. This includes car and motorcycle hire.

iv. Any other tourist services. These are services that are not intrinsically part of the carriage of passengers, accommodation or motor vehicle hire but make up a significant part of the package. For example, a traveller books a golf break with a hotel or travel organiser that includes a pre-booking for round(s) of golf, as well as the accommodation. This could be a package. However, a hotel booking for accommodation at a hotel that happens to have a golf course as a facility is not in itself a package. The golf course is simply a facility.

'Linked travel arrangements'

There are two different types of LTA envisaged by the 2018 PTRs:

i. The first type is where a traveller selects and pays separately for at least two travel services during a single visit to a shop (e.g., travel agent where the traveller selects and pays for a hotel and then, without leaving the agent, pays separately for a flight) or website (e.g., consumer goes onto a website, selects and pays for a flight, and then while still on the website, selects and pays for a hotel).

ii. The second type relates to online purchases with different traders. The traveller visits a website and purchases one travel service. They are then ‘targeted’ with a ‘cross sell’ to another website trader and the traveller buys a travel service from that other trader within 24 hours (e.g., an airline sells a consumer a flight. In the booking confirmation email, the airline invites them to book a hotel room with a website to go with their flight. The consumer clicks on the link and books a hotel within 24 hours of booking the flight).

'The Consumer Rights Act 2015'

This piece of law requires that services provided by traders to consumers should be performed in accordance with the contract, with reasonable care and skill, at a reasonable price.

As a general rule, if something goes wrong with the supply of holidays and travel, consumers can claim their direct losses, but they cannot claim compensation for distress and inconvenience.

However, the law makes an exception for some types of contract, including contracts for package travel.

Therefore, as the purpose of a holiday is usually to provide enjoyment and relaxation, a consumer may be able to claim compensation for inconvenience and distress on top of a refund and any other losses if things go wrong.

'The Consumer Protection from Unfair Trading Regulations 2008 (CPRs)'

It is important for businesses to be aware of this legislation as it is used by regulators to pursue investigations where there have been misleading or deliberately false holiday and travel descriptions in brochures, online, in travel agencies or where sales are made over the telephone.

These regulations prohibit 31 specific practices that are always considered to be unfair and create further offences for aggressive practices. They prohibit ‘misleading actions’ and ‘misleading omissions’ that cause, or are likely to cause, the average consumer to take a ‘transactional decision’ they would not have taken otherwise. They apply to commercial practices relating to package holidays and travel services (including websites) before, during and after a contract is made.

Effectively the CPRs prohibit trading practices that are unfair to consumers. There are four different types of practices to consider:

  • practices prohibited in all circumstances;
  • misleading actions and omissions;
  • aggressive practices;
  • general duty not to trade unfairly.

For the last three practice types above it is necessary to show that the action of the trader has an effect (or is likely to have an effect) on the actions of the consumer in making a booking for a holiday. The test looks at the effect (or likely effect) on the average consumer, which means there is no need for evidence about how any particular individual was affected. As stated above, there are 31 of these ‘banned’ practices in the regulations.

'Misleading availability'

  • Bait advertising (or ‘bait and switch’). This is where a trader misleads a consumer into believing they can buy a package holiday or travel service at a low price when the trader is aware that they do not have reasonable stock available or are not able to supply at that price; this is also where the trader attempts to ‘up-sell’ to a higher priced product.
  • Falsely stating that a product is only available for a very limited time in order to make the consumer make an immediate decision.

An example of a breach of the law would be where an advertised sale of package holidays stated a finishing date for the offer, but the sale was continued after the advertised finishing date as few sales had been made.  An example of other specific banned practices are added after ‘Misleading actions & omissions’ below.

'Misleading actions & omissions'

The CPRs prohibit ‘misleading actions’ and ‘misleading omissions’ that cause, or are likely to cause, the average consumer to take a different transactional decision. This does not only relate to pre-shopping but includes after-sales.

‘Misleading actions’ happen when a trader provides false information about important matters, such as the main characteristics of the product (even if the information is factually correct), or presents the product in such a way as to be likely to deceive the consumer as to these matters. An example of a breach of the law would be where flight prices are advertised but they do not include Government taxes.

‘Misleading omissions’ happen when a trader gives insufficient information about a holiday or travel service. It is a breach of the CPRs to fail to give consumers the information they need to make an informed choice in relation to a holiday or travel service if this would cause the average consumer to take a different decision.

In one case, a family booked a stay in a Spanish apartment which was described as being “ideal for families, with a lovely south facing infinity swimming pool”. When they arrived at the apartment, they discovered that in front of the pool was a 12-foot drop onto the concrete car park below. The family contacted the trader, who offered them compensation and the use of another apartment nearby.

Some other banned practices are listed below:

i. Claiming to be a signatory to a code of conduct when the trader is not, e.g., claiming compliance with the ABTA Code of Conduct without being a member.

ii. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation, e.g., using the ABTA logo.

iii. Claiming a code of conduct as an endorsement from a public or other body which it does not have.

iv. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when the trader, the commercial practices or the product have not; or making such a claim without complying with the terms of the approval, endorsement or authorisation, e.g., reference to ABTA.

v. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply, or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).

It is a breach of the CPR's to:
  • omit material information
  • hide material information
  • provide material information in a manner that is unclear, unintelligible, ambiguous or untimely.

Key points and guidance to help businesses understand the requirements of all holiday laws applicable to holiday and travel arrangements sold after July 1, 2018

  • Businesses will need to put in place processes and procedures when making sales in travel agencies, on the telephone or on their website, to ensure the traveller is given specific information before booking the package and also specific information when the confirmation invoice is presented.
  • Businesses will need to provide security for the money they take from travellers by holding an air travel organiser’s licence (ATOL) for flight-inclusive packages or, for non-flight packages or LTAs, by providing a bond or insurance policy, or by holding the money in a trust account.
  • Trust Accounts are becoming more popular for businesses to protect their holidays. There will be a need to review contracts with consumers to ensure they are fully covered.
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