Package Holidays and Travel Trade Act 1995

Interpretation.

2

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;

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 19901 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 in paragraphs (a), (b) or (c) of the definition of ‘travel service’ and

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

are purchased, those services do not constitute a linked travel arrangement if the tourist services referred to in paragraph (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 with paragraph (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 in paragraph (a), (b) or (c) of the definition of ‘travel service’ is combined with one or more tourist services referred to in paragraph (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 in paragraph (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 20072, 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 of paragraphs (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 to paragraph (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.

Annotations:

Amendments:

F1

Deleted (11.03.2019) by European Union (Package Travel And Linked Travel Arrangements) Regulations 2019 (S.I. No. 80 of 2019), reg. 3(1)(a).

F2

Inserted (11.03.2019) by European Union (Package Travel And Linked Travel Arrangements) Regulations 2019 (S.I. No. 80 of 2019), reg. 3(1)(b).

F3

Substituted (11.03.2019) by European Union (Package Travel And Linked Travel Arrangements) Regulations 2019 (S.I. No. 80 of 2019), reg. 3(1)(c)(i).

F4

Substituted (11.03.2019) by European Union (Package Travel And Linked Travel Arrangements) Regulations 2019 (S.I. No. 80 of 2019), reg. 3(1)(c)(ii).

F5

Substituted (11.03.2019) by European Union (Package Travel And Linked Travel Arrangements) Regulations 2019 (S.I. No. 80 of 2019), reg. 3(1)(c)(iii).

F6

Substituted (11.03.2019) by European Union (Package Travel And Linked Travel Arrangements) Regulations 2019 (S.I. No. 80 of 2019), reg. 3(1)(c)(iv).

F7

Deleted (11.03.2019) by European Union (Package Travel And Linked Travel Arrangements) Regulations 2019 (S.I. No. 80 of 2019), reg. 3(2).

F8

Substituted (11.03.2019) by European Union (Package Travel And Linked Travel Arrangements) Regulations 2019 (S.I. No. 80 of 2019), reg. 4.

Modifications (not altering text):

C3

Functions transferred and references to "Director" construed (1.05.2007) by Consumer Protection Act 2007 (19/2007), ss. 2, 37(1), (2), (3) and sch. 1 pt. 1, subject to transitional provisions in s. 37(4)-(5), S.I. 179 of 2007 (establishment day).

37.— (1) The administration and business in connection with the exercise, performance or execution of any of the functions transferred by subsection (2) are transferred to the Agency on the establishment day.

(2) The functions vested in the Director by or under the existing enactments are transferred to the Agency on the establishment day.

(3) References to the Director and the office of the Director contained in any Act (within the meaning of the Interpretation Act 2005 ) or instrument (including a licence or certificate granted, nomination made or consent or authorisation given thereunder) relating to any functions transferred by subsection (2) shall, on and after the establishment day, be read as references to the Agency.

SCHEDULE 1

Existing Enactments

Section 2 .

PART 1

Enactments — Acts of the Oireachtas

Number and Year

(1)

Short Title

(2)

...

...

No. 17 of 1995

Package Holidays and Travel Trade Act 1995

...

...

...

C4

Functions transferred and references to "Minister" construed (27.02.2001) by Aviation Regulation Act 2001 (1/2001), s. 9(1), (2) and (3), subject to transitional provisions in s. 9(4)-(7), S.I. No. 47 of 2001, art. 2 (establishment day).

9.—(1) The administration and business in connection with the exercise, performance or execution of any of the functions transferred by subsection (2) are hereby transferred, on the establishment day, to the Commission.

(2) There are hereby transferred, on the establishment day, to the Commission the functions vested in the Minister by or under each of the following—

...

(b) the Package Holidays and Travel Trade Act, 1995 ,

...

(3) References to the Minister contained in any Act or instrument relating to any functions transferred by subsection (2) shall, on the establishment day, be construed as references to the Commission.

...