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When a complaint is going to be submitted regarding a tourism question, the first problem the consumer has is knowing what court will have competence and what legislation is applicable.
For example, if a Spanish consumer has a problem with a Spanish hotel establishment, he knows he can submit a complaint to the Spanish courts and that the regulations in force in his country will be applied, but what happens if the problem is with an Italian hotel, for example?
What court?
According to the CD regulation nº 44/2001 of 22nd December 2000 (Bruxelles I Regulation), in the event of litigation over a contract concluded by a consumer for a user outside his professional activity, the consumer may file legal action either at the State courts of the territory where the other party is based, or at the court of his own country.
In other words: if a Spanish consumer has a litigation with an Italian hotel, he may file legal action both in Italy and in Spain. Even if he chooses to do so in his country, he will confront a lot of difficulties, because he will have to summon the other party to his own country, which will significantly increase the cost of the process.
What law?
As for knowing which law is applicable, things are rather more complicated. The Rome Convention of 19th June 1980 on the law applicable to contractual obligations, approved by law of 14th July 1987, sets out that:
The parties may freely choose the laws that will apply to their contract;
If they do not choose a law, the law of the country where the contract presents the closest relations will apply, namely, the country where the service provider regularly resides;
If this is a contract signed by a consumer, the free choice of the applicable law by the parties cannot deprive the consumer of the protection provided by the law of his own country, at least in the following cases:
- if relevant advertising or a special proposal is made before the contract is concluded,
- if the contracting party has received the request from the consumer in that country,
- if the consumer has gone to a foreign country to make the request, provided the trip has been organised by the contractor.
To summarise, if the consumer has taken the initiative to contact a foreign service provider directly, the applicable law will be the one that the parties mutually agree on (it will, in practice, be foreseen in the general terms of contract), or by default, the law of the country where the service is provided will apply (for example, Italian law, if a hotel has been booked in Italy).
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