PART II

Regulation of Travel Contract

10. —(1) An organiser shall not make available a brochure to a possible consumer unless it indicates in a legible, comprehensible and accurate manner the price and adequate information about the following matters—

(a) the destination and the means, characteristics and categories of transport used;

(b) the type of accommodation, its location, category or degree of comfort and its main features and, where accommodation is to be provided in a Member State, its approval or where applicable, tourist classification under the laws of that Member State;

(c) the meal plan;

(d) the itinerary;

(e) general information about passport and visa requirements which apply to purchase of the package and health formalities required for the journey and the stay;

(f) either the monetary amount or the percentage of the price which is to be paid on account and the timetable for payment of the balance;

(g) whether a minimum number of persons is required for the package to take place and, if so, the latest time for informing the consumer in the event of cancellation;

(h) any tax or compulsory charge;

(i) in the case of packages offered by an organiser who has no place of business in the State, a nominated agent with an address within the State who will accept service on behalf of and represent the organiser in any proceedings (including criminal proceedings) in respect of or arising out of or connected with any contract or brought pursuant to or in connection with any provision of this Act;

(j) in the event of insolvency of the organiser, the arrangements for security for money paid over and (where applicable) for the repatriation of the consumer.

(2) A retailer shall not supply a brochure knowing or having reasonable cause to believe that it does not comply with the requirements of subsection (1).

(3) An organiser who contravenes subsection (1) and a retailer who contravenes subsection (2) shall be guilty of an offence.

(4) Subject to subsections (5) and (6), where a consumer enters into a contract on the basis of information which is set out in a brochure, the particulars in the brochure (whether or not they are required by this Act to be included in the brochure) shall constitute warranties (whether express or implied as the case may be) as to the matters to which they relate.

(5) Subsection (4) shall not apply in respect of particulars where—

(a) the brochure contains a clear and legible statement that changes may be made in the particulars contained in it before a contract is concluded, and

(b) changes in those particulars so contained are clearly communicated to and accepted by the other party before a contract is concluded.

(6) Subsection (4) shall not apply in respect of particulars when the consumer and the organiser (whether directly or through a retailer) agree on or after the date on which the contract is made that those particulars should not form part of the contract.

11. —(1) An organiser or a retailer shall not supply to a consumer a brochure or other descriptive matter concerning a package, the price of a package or any conditions applying to a contract in respect of a package which contains any false or misleading information.

(2) In any proceedings against a retailer under this section it shall be a defence to show that the retailer did not know and had no reason to suspect that the brochure or other descriptive matter concerned contained information which was false or misleading.

(3) An organiser who provides a brochure or other descriptive matter concerning a package to a consumer (whether directly or through a retailer) shall be liable to compensate the consumer for any damage caused to the consumer as a direct consequence of and attributable to the consumer's reliance on information which is false or misleading—

(a) contained in the brochure or other descriptive matter; or

(b) given by the organiser in respect of the brochure or other descriptive matter.

(4) A retailer shall be liable to compensate the consumer for any damage caused to the consumer as a direct consequence of and attributable to the consumer's reliance on information which is false or misleading—

(a) contained in any brochure or descriptive matter supplied by the retailer, or

(b) given by the retailer in respect of the brochure or other descriptive matter.

12. —(1) Before a contract is made, the organiser (whether directly or through a retailer) shall provide the intending consumer with the following information in writing or in some other appropriate form—

(a) general information about passport and visa requirements which apply to purchase of the package, including information about the length of time it is likely to take to obtain the appropriate passports and visas;

(b) information about health formalities required by national administrations for the journey and the stay;

(c) where the consumer is required as a term of the contract to take out insurance to cover the cost of cancellation by the consumer or the cost of assistance, including repatriation, in the event of accident or illness, the minimum level of insurance cover stipulated by the organiser but so that nothing in this Act authorises an organiser to make it compulsory for the intending consumer to purchase any specified insurance policy;

(d) in the event of insolvency, the arrangements for security for the money paid over and (where applicable) for the repatriation of the consumer.

(2) (a) An organiser who contravenes subsection (1) shall be guilty of an offence unless the contravention is shown to be due to the failure of the retailer to pass on to the intending consumer the information supplied to the retailer by the organiser.

(b) A retailer who fails to provide the intending consumer with the information shall be guilty of an offence.

(3) The obligations of subsection (1) may be fulfilled by referring the intending consumer to such information contained in a brochure supplied to the intending consumer and which complies with sections 10 and 11 (1) and to which no relevant alterations have been made since the brochure was supplied.

(4) Where the consumer is not required as a term of the contract to take out insurance to cover the cost of cancellation by the consumer or the cost of assistance, including repatriation, in the event of accident or illness, the organiser shall, where such is available to him, provide the intending consumer with information about the optional conclusion of an insurance policy to cover those risks.

13. —(1) The organiser shall in good time before the package is due to start (whether before or after the contract has been made) provide the consumer (whether directly or through a retailer) with the information specified in subsection (2) in writing or in some other appropriate form.

(2) The information referred to in subsection (1) is—

(a) where the package includes a transport component, the times and places of intermediate stops and transport connections and details of the place to be occupied by the traveller, including, cabin or berth on ship, sleeper compartment on train;

(b) the name, address and telephone number—

(i) of the representative of the organiser in the locality where the consumer is to stay, or

(ii) if there is no such representative, of an agency in that locality to provide assistance to a consumer in difficulty,

or, if there is no such representative or agency, a telephone number or other information which will enable the consumer to contact the organiser and the retailer, or either of them, during the course of the package;

(c) in the case of a journey or stay outside the State by a minor, information enabling direct contact to be made with the minor or with the person responsible at the minor's place of stay.

(3) (a) An organiser who contravenes subsection (1) shall be guilty of an offence unless the contravention is due to the failure of the retailer to pass on to the consumer or intending consumer the information supplied to the retailer by the organiser.

(b) A retailer who fails to provide the consumer or intending consumer with the information shall be guilty of an offence.

(4) The obligations of subsection (1) may be fulfilled by—

(a) referring the consumer or intending consumer to such information contained in a brochure supplied to the consumer or intending consumer which complies with section 10 and to which no relevant alterations have been made since the brochure was supplied, or

(b) supplying the consumer with such information under the terms of the contract in writing or some other form as is comprehensible and accessible to the consumer provided that such information is supplied in good time before the start of the package.

14. —(1) The organiser (whether dealing directly with the consumer or through a retailer) shall ensure that, depending on the nature of the package being purchased, the contract contains at least the following elements if relevant to the particular package—

(a) the travel destination or destinations and, where periods of stay are involved, the relevant periods, with dates;

(b) the means, characteristics and categories of transport to be used and the dates, times and points of departure and return;

(c) where the package includes accommodation, its location, its tourist category (if any) or degree of comfort, its main features and, where the accommodation is to be provided in a Member State, its compliance with the laws of that Member State;

(d) the meal plan;

(e) whether a minimum number of persons is required for the package to take place and, if so, the latest time for informing the consumer in the event of cancellation;

(f) the itinerary;

(g) visits, excursions or other services which are included in the total price agreed for the package;

(h) (i) the name and address of the organiser, the retailer and, where appropriate, the insurer;

(ii) in the case of packages sold by an organiser (whether dealing directly with the consumer or through a retailer) who has no place of business in the State, a nominated agent with an address within the State who will accept service on behalf of and represent the organiser in any proceedings (including criminal proceedings) in respect of or arising out of or connected with any contract or brought pursuant to or in connection with any provision of this Act;

(i) the price of the package, if price revisions may be made in accordance with the terms which may be included in a contract, an indication of the possibility of such price revisions, and an indication of any dues, taxes or fees chargeable for certain services (such as landing, embarkation or disembarkation fees at ports and airports and tourist taxes) where such costs are not included in the package;

(j) the payment schedule and method of payment;

(k) special requirements which the consumer has communicated to the organiser or retailer when making the booking and which both have accepted;

(l) the periods within which the consumer must make any complaint about the failure to perform or the inadequate performance of the contract provided that such periods shall not be less than twenty eight days from the date of completion of the package.

(2) Without prejudice to the liability of the organiser under subsection (1), it shall be an express term in every contract that the consumer shall communicate at the earliest opportunity, in writing or any other appropriate form, to the supplier of the services concerned, and to the organiser or local representative, if there is one, any failure which the consumer perceives at the place where the services concerned are supplied.

(3) The words “any other appropriate form” in subsection (2) include oral communication, provided written details of the complaint are confirmed to the organiser or the local representative if the consumer fails to obtain a satisfactory response to the complaint.

(4) In cases of complaint the organiser or local representative shall make prompt efforts to find appropriate solutions.

15. —(1) The organiser (whether dealing directly with the consumer or through a retailer) shall ensure that—

(a) all the terms of the contract are set out in writing or in such other form as is comprehensible and accessible to the intending consumer and are communicated to the intending consumer before the contract is made;

(b) a written copy of these terms is supplied to the consumer.

(2) Subsection (1) (a) shall not apply in the case of a proposal by an intending consumer made to the organiser or the retailer not more than fourteen days before the date of departure under the proposed contract.

(3) An organiser (whether dealing directly with the consumer or through a retailer) who contravenes subsection (1) (b) shall be guilty of an offence unless the contravention is due to the failure of the retailer to provide the consumer with a written copy of the terms of the contract supplied to the retailer by the organiser.

(4) A retailer who fails to provide the consumer with a written copy of the terms of a contract supplied to the retailer by the organiser shall be guilty of an offence.

16. —(1) In every contract there shall be an implied term that where the consumer is prevented from proceeding with the package, the consumer may transfer the booking to a person who satisfies all the conditions required to be satisfied by a person who takes the package, provided that the consumer gives reasonable notice to the organiser or to the retailer acting on the instructions of the organiser of the consumer's intention to transfer the booking before the specified departure date.

(2) Where a transfer is made in accordance with the implied term set out in subsection (1), the transferor and the transferee shall be jointly and severally liable to the organiser or the retailer acting on the instructions of the organiser for payment of the price of the package (or, if part of the price has been paid, for payment of the balance) and for any additional fair and reasonable costs incurred by the organiser as a result of the transfer.

17. —(1) A term in a contract to the effect that the prices laid down in the contract may be revised shall be void unless the contract provides for the possibility of upward or downward revision and satisfies the conditions of subsection (2).

(2) The conditions mentioned in subsection (1) are:

(a) that the manner in which the price revision, if made, will be calculated, is described precisely in the term, and

(b) that the circumstances in which the price may be revised shall be described in the term and shall be such as to provide that price revisions may be made only to allow for variations in—

(i) transport costs, including the cost of fuel,

(ii) dues, taxes or fees chargeable for services such as landing taxes or embarkation or disembarkation fees at ports and airports, or

(iii) the exchange rates which apply to the particular package.

(3) Notwithstanding any terms of the contract no price increase may be made later than a date specified in the contract which shall not be less than twenty days before the specified departure date.

18. —(1) In every contract the following terms are implied—

(a) that, subject to section 17 , where the organiser is compelled before departure to alter significantly an essential term of the contract, such as the price, the consumer will be notified as soon as possible in order to enable the consumer to take appropriate decisions and in particular to withdraw from the contract without penalty or to accept a variation to the contract specifying the alterations made and their impact on the price; and

(b) that the consumer will inform the organiser or the retailer (as appropriate, in the light of the organiser's instructions) of the decision as soon as possible.

(2) (a) The terms set out in paragraphs (b) and (c) shall be implied in every contract and shall apply where the consumer withdraws from the contract pursuant to the term in it implied by virtue of subsection (1) (a) or where the organiser, for any reason other than the fault of the consumer, cancels the package before the date when it is due to start.

(b) The consumer is entitled—

(i) to take a replacement package of equivalent or superior quality if the organiser (whether directly or through a retailer) is able to offer such a replacement; or

(ii) to take a replacement package of lower quality if the organiser is able to offer such a replacement and to recover from the organiser the difference in price between that of the package purchased and the replacement package; or

(iii) to have repaid as soon as possible all the moneys paid under the contract.

(c) The consumer is entitled, without prejudice to paragraph (b), to be compensated by the organiser for non-performance of the contract except where—

(i) the package is cancelled because the number of persons who agree to take it is less than the minimum number required and the consumer is informed of the cancellation, in writing, within the period prescribed in the contract, or

(ii) the package is cancelled by force majeure, that is to say the package is cancelled by reason of unusual and unforeseeable circumstances beyond the control of the organiser, the retailer or other supplier of services, the consequences of which could not have been avoided even if all due care had been exercised.

(d) Overbooking shall not be regarded as a circumstance falling within paragraph (c) (ii).

19. —(1) The terms set out in subsections (2) and (3) shall be implied in every contract and shall apply where, after departure, a significant proportion of the services contracted for is not provided, or the organiser becomes aware that a significant proportion of the services cannot be provided.

(2) The organiser shall make suitable alternative arrangements, at no extra cost to the consumer, for the continuation of the package and shall compensate the consumer for any difference between the services to be supplied under the contract and those actually supplied.

(3) If it is impossible to make arrangements as described in subsection (2), or these are not accepted by the consumer on reasonablegrounds, the organiser shall, where homeward transport arrangements are a term of the contract, provide the consumer at no extra cost with equivalent transport back to the place of departure or to another place to which the consumer has agreed and shall compensate the consumer for the proportion of services not supplied.

20. —(1) The organiser shall be liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by the organiser, the retailer, or other suppliers of services but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services.

(2) The organiser shall be liable to the consumer for any damage caused by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of the organiser or the retailer nor to that of another supplier of services, because—

(a) the failures which occur in the performance of the contract are attributable to the consumer,

(b) such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable, or

(c) such failures are due to—

(i) force majeure, that is to say, unusual and unforeseeable circumstances beyond the control of the organiser, the retailer or other supplier of services, the consequences of which could not have been avoided even if all due care had been exercised, or

(ii) an event which the organiser, the retailer or the supplier of services, even with all due care, could not foresee or forestall.

(3) In the case of damage arising from the non-performance or improper performance of the services involved in the package, other than—

(a) death or personal injury, or

(b) damage caused to the consumer by the wilful misconduct or gross negligence of the organiser,

the contract may, save as provided in subsection (5), include a term limiting, in accordance with subsection (4), the amount of compensation payable to the consumer.

(4) Where compensation limits are a term of the contract under subsection (3), the organiser may not limit liability to less than—

(a) in the case of an adult, an amount equal to double the inclusive price of the package to the adult concerned,

(b) in the case of a minor, an amount equal to the inclusive price of the package to the minor concerned.

(5) In the case of damage arising from the non-performance or improper performance of the services involved in the package, the contract may provide for compensation to be limited in accordance with any international conventions in force governing such services in the place where they are performed or are due to be performed.

(6) Without prejudice to subsections (3), (4) and (5), liability under subsections (1) and (2) cannot be excluded by any contractual term.

(7) In the circumstances described in paragraphs (b) and (c) of subsection (2), it shall be an implied term of the contract that the organiser, or the retailer acting on the instructions of the organiser, as the case may be, will give prompt assistance to a consumer in difficulty.

(8) The provisions of this section are without prejudice to the provisions of the Hotel Proprietors Act, 1963 .

21. —(1) In this section “authorised officer” means:

(a) a person appointed and authorised in writing by the Director to exercise, for the purpose of this Act, the functions conferred by this section,

(b) a person appointed and authorised in writing by the Minister to exercise for the purpose of the Act of 1982, the functions conferred by this section.

(2) Every authorised officer shall be furnished with a warrant of appointment and, when exercising any function conferred by this section shall, if requested to do so by a person affected, produce the warrant or a copy thereof to that person.

(3) An appointment as an authorised officer shall cease—

(a) in the case of an appointment made by the Minister, when the Minister revokes the appointment;

(b) in the case of an appointment made by the Director, when the Director revokes the appointment;

(c) where it is for a fixed period, upon the expiry of that period; or

(d) where the person appointed is an officer of the Minister, the Director or the Minister for Enterprise and Employment, upon ceasing to be such an officer.

(4) An authorised officer may, for the purpose of obtaining any information which may be required in relation to the matter under investigation in order to enable the Minister to exercise functions under the Act of 1982, or the Director to exercise functions under this Act, on production of his authorisation, if so required—

(a) at all reasonable times enter any premises, at which there are reasonable grounds to believe that any trade or business or any activity in connection with a trade or business is or has been carried on, or that records in relation to such trade, business or activities are kept, and search and inspect the premises and any records on the premises;

(b) secure for later inspection any premises or any part of a premises in which such records are kept or there are reasonable grounds for believing that such records are kept;

(c) require any person who carries on such trade, business or activity or any person employed in connection therewith to produce such records and in the case of information in a non-legible form to reproduce it in a legible form or to give to the officer such information as the officer may reasonably require in relation to any entries in such records;

(d) inspect and take copies of or extracts from any such records (including in the case of information in a non-legible form a copy of or extract from such information in a permanent legible form);

(e) remove and retain the said records for such period as may be reasonable for further examination, subject to a warrant being issued for that purpose by the District Court;

(f) require any such person to give to the officer any information which the officer may reasonably require in regard to the trade, business or activity or in regard to the persons carrying on such trade, business or activity (including, in particular, in the case of an incorporated body of persons, information in regard to the membership thereof and of its committee of management or other controlling authority) or employed in connection therewith;

(g) require any such person to give to the officer any other information which the officer may reasonably require in regard to such trade, business or activity;

(h) require any person by or on whose behalf data equipment is or has been used or any person having charge of, or otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to afford the officer all reasonable assistance in relation thereto;

(i) summon, at any reasonable time, any other person employed in connection with the trade, business or activity to give to the officer any information which the officer may reasonably require in regard to such activity and to produce to the officer any records which are in that person's power and control.

(5) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling unless the officer has obtained a warrant from the District Court authorising such entry.

(6) Where an authorised officer, in the exercise of any power under this section, is prevented from entering any premises that officer or the person by whom the officer was appointed may apply to the District Court for a warrant authorising such entry.

(7) An authorised officer, where the officer considers it necessary, may be accompanied by a member of the Garda Síochána when performing any powers conferred on an authorised officer by this Act.

(8) A person who obstructs or interferes with an authorised officer in the exercise of functions under this Act or gives to an authorised officer information which is false or misleading shall be guilty of an offence.

(9) A person who refuses to comply with any request or requirement of an authorised officer in the exercise of functions under this Act shall be guilty of an offence.