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17 1995

PACKAGE HOLIDAYS AND TRAVEL TRADE ACT, 1995

PART III

Security

Security requirements in the event of insolvency.

22. —(1) In relation to a package to which this Act applies, a package provider shall have sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency.

(2) A package provider shall be deemed to have satisfied the requirements of subsection (1)

(a) by making any one or more of the arrangements as described in sections 23 to 25 in relation to the package, or

(b) if the package is one in respect of which the provider is required to hold a licence under the Act of 1982, and is covered by arrangements entered into for the purposes of that Act.

(3) A package provider, other than a package provider who holds a licence under the Act of 1982 in respect of the package in question and has made the necessary arrangements for the purposes of that Act, who fails to—

(a) make one of the arrangements described in subsection (2), or

(b) ensure that such arrangements are in force,

shall be guilty of an offence.

(4) For the purposes of this Part, a contract shall be deemed to have been fully performed if the package, or, as the case may be, the part of the package has been completed irrespective of whether the obligations under the contract have been properly performed for the purposes of section 20 .

Bonding where an approved body has a reserve fund or insurance.

23. —(1) This section relates to a bond entered into by an authorised institution under which the institution pays to an approved body of which the package provider is a member such sum as may reasonably be expected—

(a) to enable all moneys paid over by consumers under or in contemplation of contracts for packages which have not been fully performed to be repaid,

(b) to enable consumers to be repatriated, where appropriate, and

(c) to defray any reasonable expenses necessarily incurred by the approved body,

in the event of the insolvency of the package provider.

(2) A body may not be approved for the purposes of this section unless:

(a) it has a reserve fund or insurance cover with an institution authorised in respect of such business in a Member State of an amount in each case which is designed in the event of the insolvency of a member to enable all monies paid over to that member of the body by consumers under or in contemplation of contracts for packages which have not been fully performed to be repaid to those consumers and to provide for the repatriation, where appropriate, of consumers; and

(b) where it has a reserve fund it agrees that the fund will be held by persons and in a manner approved by the Minister.

(3) The Minister may by regulations provide that the bond may be for such minimum sum and valid for such maximum period as may be specified in the regulations.

(4) (a) In this section “approved body” means a body which is for the time being approved by the Minister (in consultation with the Minister for Tourism and Trade where arrangements cover a package which is to take place exclusively within the State) for the purposes of this section and no such approval shall be given unless the conditions mentioned in subsection (2) are satisfied in relation to it.

(b) The Minister may by regulations specify additional conditions that shall be complied with and other appropriate matters relating to the grant of approval to a body which applies to the Minister to be an approved body.

(5) Before a bond is given pursuant to subsection (1), the package provider shall inform an approved body of which the provider is a member of the minimum sum proposed for the purposes of that subsection and it shall be the duty of the approved body to consider whether such sum is sufficient for the purpose mentioned in that subsection and, if it does not consider that this is the case, it shall be the duty of the approved body to inform the package provider of the sum which, in the opinion of the approved body, is sufficient for that purpose.

(6) It shall be the duty of an approved body to ensure that there are adequate arrangements for the repatriation of the consumer in the event of the insolvency of a package provider who is a member of that approved body.

(7) In this section “authorised institution” means a person authorised under the law of a Member State to carry on the business of entering into bonds of the kind required by this section.

Bonding where an approved body does not have a reserve fund or insurance.

24. —(1) This section relates to a bond entered into by an authorised institution under which the institution agrees, in the event of the insolvency of the package provider, to pay to an approved body which does not have a reserve fund or insurance as set out in section 23 (2) of which the package provider is a member such sum as may reasonably be expected to—

(a) enable all moneys paid over by consumers under or in contemplation of contracts for packages which have not been fully performed to be repaid,

(b) enable consumers to be repatriated, where appropriate, and

(c) defray any expenses necessarily incurred by the approved body.

(2) The Minister may by regulations provide that the bond may be for such minimum sum and valid for such maximum period as may be specified in the regulations.

(3) Before a bond is given pursuant to subsection (1), the package provider shall inform an approved body of which the provider is a member of the minimum sum proposed for the purposes of that subsection and it shall be the duty of the approved body to consider whether such sum is sufficient for the purpose mentioned in that subsection and, if it does not consider that this is the case, it shall be the duty of the approved body to inform the package provider of the sum which, in the opinion of the approved body, is sufficient for that purpose.

(4) It shall be the duty of an approved body to ensure that there are adequate arrangements for the repatriation of the consumer in the event of the insolvency of a package provider who is a member of that approved body.

(5) The Minister may by regulations specify conditions that shall be complied with and other appropriate matters relating to the grant of approval to a body which applies to the Minister to be an approved body.

(6) In this section—

approved body” means a body which is for the time being approved by the Minister (in consultation with the Minister for Tourism and Trade where arrangements cover a package which is to take place exclusively within the State) for the purpose of this section;

authorised institution” has the meaning given to that expression by section 23 (7).

Insurance.

25. —(1) The package provider shall have insurance under one or more appropriate policies with an insurer authorised in respect of such business in a Member State under which the insurer agrees to indemnify consumers (who shall be insured persons under the policy), against—

(a) the loss of all money paid over by them under or in contemplation of contracts for relevant packages, and

(b) where applicable to the package concerned, the cost of repatriation of consumers based on administrative arrangements established by the insurer to enable repatriation of such consumers,

in the event of insolvency of the package provider.

(2) The package provider shall ensure that it is a term of every contract with a consumer that the consumer acquires the benefit of a policy of a kind mentioned in subsection (1) in the event of the insolvency of the package provider.

(3) In this section “appropriate policy” means one which does not contain a condition which provides (in whatever terms) that no liability shall arise under the policy, or that any liability so arising shall cease—

(a) in the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy,

(b) in the event of the failure of the policy holder to make payments to the insurer in connection with that policy or with other policies, or

(c) unless the policy holder keeps specified records or provides the insurer with information therefrom.