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17 1995

PACKAGE HOLIDAYS AND TRAVEL TRADE ACT, 1995

PART I

Preliminary and General

Short title, collective citation and commencement.

1. —(1) This Act may be cited as the Package Holidays and Travel Trade Act, 1995.

(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.

Interpretation.

2. —(1) In this Act, except where the context otherwise requires—

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 ;

consumer”—

(a) in relation to a contract, means the person who takes or agrees to take the package (“the principal contractor”);

(b) in any other case, means, as the context requires—

(i) the principal contractor,

(ii) any person on whose behalf the principal contractor agrees to purchase a package (“another beneficiary”), or

(iii) any person to whom the principal contractor or another beneficiary transfers the package (“the transferee”);

contract” means an agreement linking the consumer to the organiser (whether dealing directly with the consumer or through a retailer);

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;

functions” includes powers and duties;

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;

organiser” has the meaning assigned to it by section 3 ;

package”, subject to subsection (2), means a combination of at least two of the following components pre-arranged by the organiser when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation—

(a) transport;

(b) accommodation;

(c) other tourist services, not ancillary to transport or accommodation, accounting for a significant proportion of the package;

package provider” (or “provider”) means—

(a) in circumstances other than those described at paragraph (b), the organiser, or where the retailer is also party to the contract, both the organiser and the retailer, or

(b) in the case of a package sold or offered for sale by an organiser established outside the State through a retailer established within the State (and where the transport component of the package commences outside the State), the retailer;

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;

repatriation” means the return of the consumer to the place of departure or other place agreed with the consumer;

retailer” means the person who sells or offers for sale the package put together by the organiser.

(2) The submission of separate accounts for different components of the package shall not cause the arrangements to be other than a package for the purpose of this Act.

(3) This Act applies to packages offered for sale or sold in the State.

(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.

Organiser.

3. —(1) In this Act “organiser” means a person who, otherwise than occasionally, organises packages and sells or offers them for sale to a consumer, whether directly or through a retailer.

(2) For the purposes of subsection (1), a person shall not be regarded as organising packages occasionally unless that person is a member of a class specified in regulations made by the Minister under this subsection.

Expenses.

4. —The expenses incurred by the Minister, any other Minister of the Government or the Director in the administration of this Act (including the costs and expenses incurred in the investigation and prosecution of offences) shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Fees.

5. —(1) The Minister may, with the consent of the Minister for Finance, from time to time specify the scale of fees payable in respect of the approval of an approved body under section 23 or 24 .

(2) The Minister may make such charges in relation to any matter connected with the approval of an approved body under section 23 or 24 as are determined by the Minister, after consultation with the Minister for Finance.

(3) All fees and charges payable under this Act shall be paid into, or disposed of for the benefit of, the Exchequer in accordance with the directions of the Minister for Finance.

(4) The Public Offices Fees Act, 1879, shall not apply in respect of fees payable pursuant to this Act.

Offences.

6. —(1) A person who contravenes any provision of this Act, contravention of which is deemed to be an offence, shall be liable on summary conviction to a fine not exceeding £1,500.

(2) A person who is guilty of an offence under section 21 , 22 (3) or 26 shall be liable on summary conviction to a fine not exceeding £1,500 or, on conviction on indictment, to a fine not exceeding £50,000 or imprisonment for a term not exceeding two years or to both.

(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 .

Proceedings.

7. —(1) Summary proceedings in respect of an offence under any section of this Act may be brought and prosecuted by the Director.

(2) Summary proceedings in respect of an offence under section 21 or 26 may be brought and prosecuted by the Minister.

(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 12 months 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) or 14 (1) (h) (ii).

(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 .

Particular functions of Director.

8. —The Director may—

(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.

Laying of regulations before Houses of Oireachtas.

9. —Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

(1)O.J. No. L 158/59 23.6.1990.