Traveller Vulnerability in The Context of Travel and Tourism Contracts

Maria Goretti Sanches Lima
Traveller
Vulnerability in
the Context of
Travel and Tourism
Contracts
A Comparison of Brazilian and EU Law
Traveller Vulnerability in the Context of Travel
and Tourism Contracts
Traveller Vulnerability
in the Context of Travel
and Tourism Contracts
A Comparison of Brazilian and EU Law
IFTTA International/worldwide
Sao Paulo, Brazil
ISBN 978-3-319-98375-2 ISBN 978-3-319-98376-9 (eBook)

https://doi.org/10.1007/978-3-319-98376-9
Library of Congress Control Number: 2018952464
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For Noé
A paragon of rationality
Foreword
A comparative legal analysis between Brazil and the European Union must build
bridges. Whilst a European jurist firstly thinks with the keywords ‘travel’ and
‘right’ regarding vacation packages and the recently reformed Package Travel
Directive of 25 November 2015, in Brazil and in the rest of Latin America and in
North America1 vacation packages do not play a significant role. Instead, other
types of contracts are more prominent in contractual relationship with carriers and
hoteliers. Even the liability of the travel agency has a different meaning when a
tour operator is in the background. The contracts concluded with the service
providers often have a cross-border component—unlike the contract of ‘package
tour’, which is concluded with the tour operator based in the same country. In the
EU, if the person books a trip to a country where the arrangements were not
satisfied, the applicability of foreign law will protect its citizens because of
international process of private law (Brussels IA Regulation, Rome I Regulation).
The process is fast, in the countries where the legal procedures apply. In other
words, the structure of travel law is completely different. In order to find
similarities and differences through a comparison, a challenging effort has to
be made.
Even consumer law has no comparable structure. Nevertheless, both legal
systems recognise the existence of strong signs of jurisdictional field with that
name. For Europeans, it is understood that a consumer must be a natural person,
who enters into a transaction for a private purpose. In Brazil, it is different, mainly
as it includes the understanding of legal person, who acquires goods and services
for purposes other than for resale. For that, we would use the economic term ‘end
consumer’. Of course, the protection of consumers must be bounded by other
criterion—the vulnerable consumer, a new discovery in the European consumer
law that has been known in Brazil for a long time. By discussing consumer
1
Cf. Stenzel (2008).
vii
viii Foreword
protection issues, the work is interesting; it touches fundamental issues on the

protection of the weaker contracting party.
The actual problems, which require legal solutions, are similar because even
Brazilians travel. Travelling is no longer a luxury product accessed by a few people.
Brazil has a relatively large middle class, which is often not quite perceived from a
European perspective because of the extreme differences between the rich and
the poor.
Considering the huge legal differences, the comparative approach is a significant
challenge, which is further enhanced by the fact that the author could not write the
thesis in her native language. She defines ‘Europe’ as the European Union. There-
fore, it not addresses the rights of Member States or EU law as an example of
transposition or implementation of the legal requirements of European Union law. It
seems that the European Union appears more consistent from the outside rather than
inside.
The work is divided into three main parts, preceded by a detailed introduction.
The two main parts consist in a country report on Brazil and the European Union.
The third and final part is the ‘Analysis’ and ‘Conclusion’.
(. . .)
In both analysed legal systems, the work goes beyond the comparison of travel
regulations. The author aims to identify general principles on consumer protection
and compare them. On that, she succeeded in an outstanding degree. Travel
law serves rather to illustrate how these principles materially affect a certain
jurisdictional field. Here, the notion of consumer plays a fundamental role. It is
clear that in the analysed jurisdictional system, not only the consumer concept
is different, but even the concept of protection differs. In Brazil, the vulner-
ability of the consumer is more prominent than in the EU, where the concept of
confident consumer is dominant in both courts and legislation. However, the recent
discussions in the European Union related to vulnerable consumer show that
the ‘confident consumer’ no longer represents an advanced concept. The author
insists with good reasons on the concept of protection that is found on her
domestic legal system.
The author observes the notion of consumer, according to an ongoing discussion,
at a high level of analysis and knows how to contribute to that debate. The discussion
from the Brazilian perspective would enlarge and extend the horizons of the
European reader, not only from a transatlantic horizon but also because it provides
arguments for an intra-European debate on the notion of consumer (consumer rights
directive), particularly questions on keywords such as ‘from consumer to user’ or
‘vulnerable consumer’.
Nonetheless, it has to be noted that the author should not have restricted the
research concerning EU law to several documents from the European institutions.
The development of the notion of consumer in the EU law is accompanied by a lively
debate, particularly in the English literature. However, it is remarkable that the
results are correct. The documents offered a support to deepen the contribution of
the author’s arguments, which highlights the work’s autonomy.
Foreword ix
Overall, the work is an extraordinary achievement on a high level, which contains

not only a comparative law perspective but also significant new ideas to the debate of
consumer rights. That is to say, it is a debate that ‘travel law’ plays a particular and
significant role in. The further debate on ‘vulnerable consumer’ should not miss this
work.2
Emeritus Prof. of Private Law and European Klaus Tonner

Law at the University of Rostock
Rostock, Germany
Reference
Stenzel U (2008) Comparison of American and European travel law. Verlag Dr. Kovac, Rostock
2
The text was originally written in German. English version authorised. The English version is an
edited extract from the original text. It provides a partial account of the full text.
Preface
Undertaking the task to write this book was a huge and overambitious pretension.
Not only by reason of language barrier but also because there are transnational legal
questions such as: how to compare two different cultures and legal systems and how
to identify the universal principles on the ‘travel and tourism’ field? Would be
vulnerability a universal principle feasible to apply worldwide in ‘travel and tourism’
issues?
The case herein is somehow peculiar because of the distinguished legal structure
of the European Union related to the Brazilian legal structure, this is to say, Brazil
with exclusive territorial sovereignty3 on one side and on the other side the EU,
which respects national sovereignty and territorial integrity of the Member States but
at the same time has its own legal system and sovereignty as well. Actually, the first
manuscript had included chapters attempting to demonstrate both legal systems,
including the types of instruments.4 However, to put straightforward focus on the
title, the conclusion was to cut it off.
By the time the work started, EU law did not recognise traveller with ‘legal
status’. With the new Travel Package Directive and Linked Travel Arrangements,
the traveller did acquire ‘legal status’ after November 2015. Nevertheless, the work
did not lose power as it took into account the proposal of the Package Travel
Directive, and later the book was updated to reflect the topics of the current Directive
on Package Travel and Linked Travel Arrangements. Fundamentally, the terms
consumer, traveller and tourist are subjected to several discussions concerning
individuals’ rights. The ‘legal status’ is one important aspect of ‘travel and tourism’.
The debate on the field of law is even bigger. ‘Travel and tourism’ is a portion of
consumer law. There are those, however, who think different—that ‘travel and
tourism’ has an independent structure. Others stress the intertwined aspect between
consumer law and ‘travel and tourism’.
3
The country has 26 federal states and one Federal District—Brasilia.
4
For example: EU: Directives, Regulations and so on—Brazil: Legal Statutes, Decrees and so on.
xi
xii Preface
Thus, beyond the discussion on ‘legal status’ and the ‘field of law’, there is the
phenomenon of vulnerability. Two categories of vulnerability emerge from the
literature, namely, vulnerability that relates to personal characteristics of the con-
sumer and a broader notion that takes into account the transactional situations in
which consumers find themselves.5
The work enters in such analysis, and the findings are incredibly interesting. It
points out the differences between the EU and Brazil regarding vulnerability that
affects the concepts of ‘confident consumer’ and ‘weaker party to the contract’.
Because of vulnerability, it is unavoidable to recognize that the traveller needs
protection. The work emphasises that if the consumer is always in a weaker
bargaining position than the supplier, there is more reason to pay attention to the
traveller, who usually is out of his domicile and jurisdiction. The traveller, mainly
the international one, faces cross-border barriers such as different language,
cultural differences and foreign currency. So often, he or she is victim of xenopho-
bia, racism or any other bias. The most experienced traveller always faces several
difficulties abroad. The traveller is a vulnerable person, which usually is under
vulnerable situations.
Actually, the traveller struggles to fit into the visited country to acquire goods and
services, barely knowing the rules of interaction. Travellers behave in the visited
country as they behave back home. It is not easy to recognise the cultural schemes
and scripts as rules of interaction. This is one spectrum of vulnerability.
Another point related to vulnerability is the difficulty faced by the traveller to
pursue an action against a supplier located abroad (as far as the EU is concerned, it is
located in a non-member State) in case of non- or improper performance of the
contract. In a modern high-technology society, the traveller has the convenience to
contact directly the hotel, the car rental, the restaurant, the travel agency established
in another country, concluding the contract through electronic means. There is no
party autonomy as the contract is offered in terms of a ‘take it or leave it’ basis. If
things go wrong, usually the traveller can file a claim. Nevertheless, the question is
how to enforce a foreign judgment? Cross-border traveller relationship is not
compatible with the framework of national consumer protection. Because of the
need to protect the consumer who travels, UNWTO (United Nations World Tourism
Organization) and HCCH (Hague Conference on Private International Law) have
captured the core of the problem initiating an exhaustive work toward an interna-
tional agreement regarding protection. On behalf of IFTTA (International Forum of
Travel and Tourism Advocates), John Downes and I have attended the UNWTO’s
Working Group providing contributions from IFTTA’s members to the draft con-
vention. This book has a topic regarding international law in Chap. 4.
There were some years in Germany and some years in Brazil. Meanwhile, annual
conferences and workshops by IFTTA took place around the world. IFTTA’s
5
See: European Commission, ‘Consumer vulnerability across key markets in the European Union’
(January 2016) available online at: http://ec.europa.eu/consumers/consumer_evidence/market_stud
ies/docs/vulnerable_consumers_exec_sum_27_01_2016_en.pdf.
Preface xiii
conferences provided the opportunity to observe the environment of ‘travel and

tourism’ internationally, as well as to get in touch with colleagues in many levels of
interaction from different cultures.6 Hope that this investigative legal work can be
useful as a contribution to the field of ‘travel and tourism’ that is constantly
developing.
Sao Paulo, Brazil Maria Goretti Sanches Lima
Reference
Kolani D (2016) Discoursing the legal aspects of travel and tourism – IFTTA. In: Marques CL,
Wei D (eds) The future of international protection of consumers. UFRGS, Porto Alegre, p 104
6
See the article written by the President Emeritus and co-founder of IFTTA, Dov Kolani in
Marques, C. L. & Wei, D. (2016). The Future of International Protection of Consumers. Porto
Alegre, UFRGS, p. 104.
Contents
1 Introduction: Is the Traveller a Consumer? . . . . . . . . . . . . . . . . . . . 1

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2 Brazil Consumer and Tourism Laws . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1 Consumer Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1.1 Consumer Law Evolution . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.1.2 Consumer Law as a Field of Law . . . . . . . . . . . . . . . . . . . 12
2.1.3 Consumer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.1.4 Traveller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.2 The Role of the Travel and Tourism Sector . . . . . . . . . . . . . . . . . 39
2.3 Tourism Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.3.1 The Tourism National Statute . . . . . . . . . . . . . . . . . . . . . . 48
2.3.2 Decree 7.381/10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
2.4 Travel and Tourism Contracts and Other Service Contracts . . . . . . 54
2.4.1 Contract of Carriage of Passenger . . . . . . . . . . . . . . . . . . . 58
2.4.2 Contract of Car Rental . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
2.4.3 Contract of Accommodation . . . . . . . . . . . . . . . . . . . . . . . 61
2.4.4 Timeshare Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
2.4.5 Contract of Tourism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
2.4.6 Contract of Adhesion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
2.5 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
2.5.1 Enforcement of Foreign Judgments . . . . . . . . . . . . . . . . . . 79
2.5.2 The Small Claims Courts in Airports . . . . . . . . . . . . . . . . . 80
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
3 Europe Consumer and Travel Laws . . . . . . . . . . . . . . . . . . . . . . . . . 85
3.1 Consumer Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
3.1.1 Consumer Law Evolution . . . . . . . . . . . . . . . . . . . . . . . . . 85
3.1.2 Consumer Law as a Field of Law . . . . . . . . . . . . . . . . . . . 89
3.1.3 Consumer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
3.1.4 Traveller and Business Traveller . . . . . . . . . . . . . . . . . . . . 99
xv
xvi Contents
3.2 The Role of the Travel and Tourism Sector . . . . . . . . . . . . . . . . . 103

3.3 Travel Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
3.3.1 Further Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
3.3.2 The Package Travel and Linked Travel Arrangements
Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
3.4 Service Contracts and Ancillary Contracts. Single Service
and Combined Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
3.4.1 Contract of Carriage of Passenger . . . . . . . . . . . . . . . . . . . 114
3.4.2 Contract of Car Rental . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
3.4.3 Contract of Accommodation . . . . . . . . . . . . . . . . . . . . . . . 127
3.4.4 Timeshare Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
3.4.5 Travel Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
3.4.6 Standard Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
3.5 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
3.5.1 Enforcement of Foreign Judgments . . . . . . . . . . . . . . . . . . 142
3.5.2 The Small Claims Procedure . . . . . . . . . . . . . . . . . . . . . . 144
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
4 Analysis: Consumer, Traveller and Vulnerability . . . . . . . . . . . . . . . 149
4.1 Balance Between Businesses’ Interests and Travellers’ Interests . . . 149
4.2 Consumer and Traveller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
4.3 Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
4.3.1 External Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
4.3.2 Legal Vulnerability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
4.4 Travel and Tourism Contracts and Other Service Contracts . . . . . . 173
4.4.1 Combined Service Contracts and Single Service
Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
4.4.2 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
4.4.3 Right of Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
4.4.4 Contract of Adhesion or Standard Contract . . . . . . . . . . . . 182
4.4.5 Carriage of Passenger by Air: Delay, Cancellation
and Denied Boarding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
4.4.6 Carriage of Passenger by Air: Baggage Destruction, Loss,
Damage or Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
4.5 International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
4.5.1 Tourist or Visitor, Traveller and Consumer . . . . . . . . . . . . 192
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
5 Conclusion: Travellers’ Protection . . . . . . . . . . . . . . . . . . . . . . . . . . 199
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205
Annexes: Brazilian Statutes and Flowcharts of EU Package Travel

Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Brazilian Consumer Defence Code (Part) . . . . . . . . . . . . . . . . . . . . . . . 207
Brazilian Tourism National Statute (Part) . . . . . . . . . . . . . . . . . . . . . . . 219
Flowcharts: Directive 2015/2302/EU . . . . . . . . . . . . . . . . . . . . . . . . . . 224
Table A1: Neither Package nor Linked Travel Arrangement . . . . . . . . . . 226
Acronyms, Abbreviations and Notes7
ABNT Brazilian National Standards Organization

ANAC Brazilian National Civil Aviation Authority
ANTT Brazilian National Rail and Road Authority
B2B Business-to-business contracts
B2C Business-to-consumer contracts
BGB German Civil Code (Bürgerliches Gesetzbuch)
BRICS Brazil, Russia, India, China and South Africa
C2C Consumer-to-consumer contracts
CA Code of Aeronautics (Brazil)
CADE Administrative Council for Economic Defense
CC Civil Code (Brazil)
CCV International Convention on Travel Contracts
CDC Consumer Defence Code (Brazil)
CESL Common European Sales Law
CGM Consumer-generated media
CJEU Court of Justice of the European Union
CNAE National Classification of Economic Activities (Brazil)
CONMETRO National Council of Metrology, Standardization and Industrial
Quality (Brazil)
CPC Code of Civil Procedure (Brazil)
CPC Consumer Protection Cooperation Regulation (EU)
CPF Registration of individual in the Tax Department (Brazil)
CGC Registration of companies in the Tax Department (Brazil)
CRD Consumer Rights Directive
DN Deliberação Normativa (Brazil—administrative rule)
7
The acronyms are disclosed in the original language.
xvii
xviii Acronyms, Abbreviations and Notes
ECJ European Court of Justice (ECJ may also refer to Court of Justice
of the European Union, although in English, it is still most common
referring to the court as the European Court of Justice (ECJ). The
Treaty of Lisbon (2007/09) changed the ECJ’s official name from
the ‘Court of Justice of the European Communities’ to the ‘Court of
Justice’, which is known as Court of Justice of the European Union
(CJEU).)
EMBRATUR Brazilian Tourism Institute (public agency tied with the Ministry of
Tourism)
EU European Union
EU acquis The accumulated legislation, legal acts and court decisions, which
constitute the body of European Union law
FDI Foreign direct investment
GATS General Agreement on Trade in Services
GDP Gross domestic product
HCCH Hague Conference on Private International Law
IBGE Brazilian Institute of Geography and Statistics
ICCA International Congress and Convention Association
ICP International Comparison Program (World Bank)
IMF International Monetary Fund
IMO International Maritime Organization
ISIC International Standard Industrial Classification
LICC Introduction Law to the Civil Code
LOBP Linked online booking process
LTA Linked travel arrangements
MS Member State (EU)
NEB National Enforcement Body (EU)
NPD National Democratic Party of Germany
Non-EU MS Non-EU Member State country
PPC Purchasing power currency
PPP Purchasing power parities
PPS Purchasing power standard
PRM Person with reduced mobility
PROCON Public administrative agency (It inspects and monitors the market
activities in Brazil, imposing penalties and or restrictions to
irregular business. So far, there are 838 administrative agencies
placed on 27 geographical units.)
PTD Package Travel Directive
REP Die Republikaner (Germany)
SCN National account system
SDR Special Drawing Right (International Monetary Fund)
SMEs Small and medium-sized enterprise
SNDC Consumer Protection National System
STF Supreme Federal Court of Justice
Acronyms, Abbreviations and Notes xix
STJ Superior Court of Justice

TEU Treaty on European Union
TFEU Treaty on the Functioning of the European Union
TJRS Rio Grande do Sul Court of Appeal
TJSP Sao Paulo Court of Appeal
TRF Federal Regional Court
UGC User-generated content
UNWTO United Nations World Tourism Organization
WTO World Trade Organization
Notes on Linguistic
• The word supplier is used in a broad sense, meaning retailer, trader, organiser,
seller, offeror, provider, enterprise, business, company or tourist service provider;
each of them is synonymously used to denote supplier. When required, the
context stresses the distinction accordingly.
• The wording ‘product or service’ (produto ou serviço), which better fits into
Brazilian Portuguese, was translated to ‘goods or services’, which better fits into
English. Therefore, Article 3 § 1 of the CDC may also be translated as follows:
Products are any goods, portable or not, material or immaterial.
• The laws protecting consumers are known worldwide as Consumer Protection
Code or Consumer Code. In Brazil, the terminology that suits the statute of
consumer protection is the Consumer Defence Code (Código de Defesa do
Consumidor), Act 8.078/90. This latter terminology provides a better compre-
hension of the Brazilian mens legis.
• Tourist Services Provider is the terminology that better complies with the pro-
visions of the Brazilian tourism statute rather than Tourism Services Provider.
• The expressions ‘goods and services’ and ‘goods or services’ must be understood
in the context in which they were expressed.
• The titles of Brazilian statutes and decrees were translated into English. The
Brazilian references and court cases remain in Brazilian Portuguese.
Chapter 1
Introduction: Is the Traveller a Consumer?
Which role does the consumer play when travelling? Is the traveller a consumer that
consumes goods and services as a regular consumer, or does he/she consume specific
goods and services under specific conditions that demand specific attention? In the
latter case, describing the differences between consumer and traveller that affect the
consumption of goods and services demanding accurate legislation is one issue of
this book.
Another issue is the uniqueness of the travel and tourism phenomenon and what
differs travel/tourism contracts from other service contracts concerning Brazilian and
European laws. Is the travel and tourism field a clear field of law?
Over the last decades, travelling, for business, private or official purposes, has
been the focus of particular attention from authorities of several countries. If the
consumer, in general, is always in a weaker bargaining position than the supplier,
then there is more reason to pay attention to the traveller, who usually is out of
his/her domicile and jurisdiction when he/she is consuming goods or services.
The traveller, especially the international one, faces cross-border barriers such as
different language, cultural differences and foreign currency. So often, he/she is also
victim of xenophobia, racism or any other bias. The most experienced traveller has
always several difficulties abroad. It means that in such conditions, the traveller is a
vulnerable person.
Insofar as the vulnerability of the consumer comes from the uneven relationship
between two parties,1 it seems far more reasonable and consistent with principles of
law to extend such understanding of vulnerability to the traveller in a more specific
legal framework.
Classic writer Mark Twain believed in something fragile about the traveller, who
he named as an ‘innocent abroad’. One might say that what before was innocent may
be better described nowadays as vulnerable.
1
This is because the consumer is not in a position of equal bargaining power mainly because of
difficulties in obtaining accurate information.
© Springer Nature Switzerland AG 2018 1

M. G. Sanches Lima, Traveller Vulnerability in the Context of Travel and Tourism
Contracts, https://doi.org/10.1007/978-3-319-98376-9_1
2 1 Introduction: Is the Traveller a Consumer?
With the growth of the travel and tourism industry, more people travel in their
own country or from their own country to another country with different purposes. A
wide range of travel services and facilities has been developed in a number of areas
of trade, including the supply of transport, accommodation, food and insurance
travel facilities. Therefore, at each border, the traveller is still inadvertently subjected
to a change of the applicable liability rules.
Thus, it is equally obvious, although more difficult to demonstrate legally, that the
traveller is a ‘special consumer’.
Europe, for instance, endeavours to establish a coherent legal framework regarding
‘consumer protection’. The Consumer Rights Directive (CRD) enacted in 2011 set
forth that the harmonisation of certain aspects of consumer distance and off-premises
contracts is necessary for the promotion of a real consumer internal market striking
the right balance between a high level of consumer protection and the competitiveness
of enterprises.2 Article 25 of the CRD contains a conflict-of-law provision aiming
to protect the consumer against opt-out clauses with regard to third countries.3
Until recently, the traveller was not explicitly mentioned in the EU directives or
other EU legislation, and no specific and exclusive travellers’ rules pertaining to
traveller protection existed. The former Directive 90/314/EEC on package travel did
not provide a definition for traveller at all. With a view to an overarching EU travel
law, there are studies commissioned by the EU that have advised to protect at least
the person who travels. The former Package Travel Directive 90/314/EEC defined
the consumer as being the one who concluded the contract and not necessarily the
one who travels.4
On 25 November 2015, the European Parliament and the Council of the European
Union launched the Directive on package travel and linked travel arrangements,
amending Regulation (EC) 2006/2004, Directive 2011/83/EU, and repealing Coun-
cil Directive 90/314/EEC. It brings the EU package travel rules into the digital age
and stresses that the majority of travellers buying packages or linked travel arrange-
ments are consumers within the meaning of Union consumer law. At the same time,
it is not always easy to distinguish between consumers and representatives of small
business or professionals who book trips related to their business or profession
through the same booking channels as consumers. Such travellers often require a
similar level of protection.5
One striking aspect of the EU legislation is the need to reach cohesion within the
28 countries. Because of differences of national laws, suppliers and consumers are
often uncertain about their rights in cross-border situations. One of their main
concerns is what remedies they have when a product (or service) sold and purchased
from another Member State is not in conformity with the contract. Many consumers
are therefore discouraged to purchase outside their domestic market.6
2
Directive 2011/83/EU, (4).
3
Reich et al. (2014), p. 310.
4
IP/A/IMCO/ST/2011-17, 2012, p. 23.
5
Directive 2015/2302/EU, (7).
6
COM (2011) 635, pp. 3–4. Note: See comments on chapter II. Europe (5).
1 Introduction: Is the Traveller a Consumer? 3
Therefore, the EU has sought to develop the mechanisms of cohesion to rely

largely on a change, from the minimum standard principle to the full harmonisation
principle. So far, directives providing a minimum standard that do not prevent the
Member States from having more favourable rules have shown to be unsatisfactory,
leading the EU to legislative changes on the basis of a full harmonisation principle.7
In Brazil, the Consumer Defence Code,8 which is the main legislation concerning
‘consumer protection’, stresses the word ‘consumer’ in wide definition by three
articles.9 Therein, the consumer definition is not limited solely to an individual
perspective but also implies the business traveller, the tourist traveller and a group
of travellers. This legislation does not make a distinction between the consumer of
goods and services and the user of goods and services,10 including also the profes-
sional or legal entity11 that usually consumes. However, the traveller is not explicitly
described as a consumer, and there is no special statute on package travel.
The Tourism National Statute—Act 11.771/08, which is the cornerstone of the
travel and tourism sector—regulates the relationship between the government and
the suppliers rather than private contractual relationship between the consumer
(traveller) and the supplier of goods or services.
Although the consumer in a literal sense buys goods or services, for the
purposes of consumer law, the term ‘consumer’ in Europe has a narrower meaning,
which is based on the capacity in which the consumer and the supplier of goods
or services have acted.12 The consumer means any natural person who, in contracts
covered by the Consumer Rights Directive, is acting for purposes that are outside
his trade, business, craft or profession.13 On the contrary, the term consumer in
Brazil has a broader meaning based on the grounds of the consumer relationship.
It has three distinctions: (1) a natural person or legal entity that purchases or
uses goods or services as a final addressee, including a collective of individuals,
7
Directive 2008/122/EC Recital (3): “. . .rights deriving from timeshare contracts should be fully
harmonised.”; Directive 2011/83/EU, Art 4: “Level of harmonisation, Member States shall not
maintain or introduce, in their national law, provisions diverging from those laid down in this
Directive, including more or less stringent provisions to ensure a different level of consumer
protection, unless otherwise provided for in this Directive.” Also the amended proposal for the
new PTD will enlighten the need of harmonization Directive 2015/2302/EU, 2013/0246 (COD)
Recital (5): “In accordance with Article 26 (2) of the Treaty, the internal market is to comprise an
area without internal frontiers in which the free movement of goods and services and the freedom of
establishment are ensured. The harmonisation of the rights and obligations arising from
package contracts and linked travel arrangements is necessary for the creation of a real
consumer internal market in that area, striking the right balance between a high level of consumer
protection and the competitiveness of businesses.”
8
Act 8.078, 1990.
9
Idem, Art 2, 17, and 29.
10
Benjamin et al. (2010), p. 83.
11
Act 8.078, 1990, Art 2: “A consumer is any natural person or legal entity who purchases or uses
goods or services as a final addressee.”
12
Oughton and Lowry (2000), p. 1.
13
Directive 2011/83/EU, Art 2 (1).
(2) all victims of accidents (bystander) and (3) persons incidentally exposed to
commercial practices.14
On the other hand, as further explained, neither traveller nor ‘consumer traveller’
has a particular definition prescribed by law. The traveller, in a literal sense, is ‘a
person who is travelling or who often travels’ or ‘a person who does not live in one
place but travels around, especially as part of a group’.15 Thus, for the purpose of a
pragmatic observation, simply in this context, any person who travels obviously
buys goods or services. Hence, in a broad sense, the person who travels consumes.
Although it might appear as a superficial observation, the liaison between ‘con-
sumer’ and ‘traveller’ shows the existence of reasonable grounds demanding an
accurate legal approach and that consumer and traveller are as individuals exercising
their personal freedom as a fundamental right.16 Nevertheless, the traveller is
prompted into a more fragile condition than the regular consumer when buying
goods and services because he/she is out of his domicile or jurisdiction, usually for a
medium or short period of time.
Whilst ‘consumer’, by definition, includes us all and any action or proposals in
the interest of consumers are in the interest of us all,17 the traveller, on the other
hand, is reduced to a specific economic group in the economy, affecting and being
affected by almost every economic decision. Like the consumer, the traveller usually
is not organised to claim his rights and very often not heard by the authorities.
Broadly speaking, it is possible to say that all travellers are consumers but not all
consumers are travellers. In strict sense, there are those travelling in extreme
vulnerability such as “asylum seeker” the refugees. They are travellers too, but
hardly in the concept of consumption. They have a reason for travelling, but not a
reason for consumption.
With the increasing number of activity in the travel and tourism industry, the term
traveller in the Brazilian legislation is still doubtful from a legal perspective. So far,
in Brazil, there is strong legislation dealing with consumer’s rights, but there is not a
piece of legislation dealing particularly with the traveller’s right. Conversely, since
November 2015 through the Directive on package travel and linked travel arrange-
ments, the traveller has achieved a legal status in the EU.
In this context, one might think that there is a problem here. It is the debate about
what is a consumer. This debate has not reached a conclusion over the years.
14
Act 8.078, 1990, Art 2, 17, 29.
15
Oxford (2005).
16
Note: Europe—In 2009, the Treaty on European Union and the Treaty on the Functioning of the
European Union resulted from the amendments introduced by the Treaty of Lisbon, which was
signed on December 13, 2007 in Lisbon and which entered into force on December 1st, 2009 it
embraces the term “Freedom to travel” under Chapter 2: Polices on Border Checks, Asylum and
Immigration, Article 77 (2) (c). In Brazil—This fundamental right is implicit in the Federal
Constitution under the following wording: “Art 5, item XV—it is free in time of peace the
movement (of persons) within the national territory, and any person may, under the terms of the
law, enter it, remain therein or leave it with her/his assets”.
17
Kennedy (1962).
Inasmuch as being a citizen is one of the bases to provide an individual with certain
rights (e.g., citizen rights), the subsequent question has arisen about the passenger,
traveller, business traveller, user and, of course, consumer because they no longer
remained only an individual person, in terms of a natural person under the law, but
they are persons created by law.
In addition to the consumer traveller, there are also consumer groups that are
more likely to experience detriment than others. It is unlikely that everyone who falls
into one of these categories faces the same level of risk. They are the children, the
elderly and the disabled who also travel.
Then how should vulnerability be understood, and how has been it
conceptualised by the legal systems addressed to the traveller?
Whilst the approaches of consumer vulnerability are different in Brazil and the
EU, certain features of this circumstance are remarkably consistent. One hallmark of
such features is that they reveal the dependencies between legal spheres that often
are studied and discussed in isolation from one another.
Contract law, for example, is largely consumer law. Hence, consumer law also
affects the harmonisation of contract law. It makes visible the linkages between
parties in a contract (B2C), and the component of vulnerability may be accounted for
a qualitative consumer relationship in contractual terms, where one party is weaker
than the other and thus in need of protection. This may influence the law applicable
to contractual obligations in the relation between two parties, which may differ
depending on the person’s rights.
Based on the principle of equality, the weaker party shall be protected by rules
more favourable to his/her interest than the general rules provide for. ‘Equality’ or
‘equal’ signifies correspondence between a group of different persons with the same
qualities in at least one respect but not all respects. ‘Equally’ signifies a qualitative
relationship. It is a fiction of law for establishing the criterion of proper rules. That is
why consumers are protected by law from unequal bargaining power because often
there is a lack of meaningful choice as in the case of a form contract heavily weighted
in favour of one party in terms of a ‘take it or leave it’18 basis.
For instance, if a contract contains unfair standard contract terms
(EU terminology) or abusive clauses (Brazilian terminology) inserted by suppliers
creating an imbalance to the detriment of the consumer, the consumer is not bound
by them, although the contract itself usually remains valid. Where there is doubt
about the meaning of a term (or clause), the interpretation most favourable to the
consumer shall prevail under both laws: the EU19 and Brazil.20
18
The expression is primarily found into Courts decisions from U.S.A. such as: Carlson v General
Motors Corp. 883 F 2d 287 (4th Cir. 1989), Campbell Soup v Wentz, 172 F2d 80 (3rd Cir. 1948).
19
Directive 93/13/EEC, Recital: “Whereas contracts should be drafted in plain, intelligible lan-
guage, the consumer should actually be given an opportunity to examine all the terms and, if in
doubt, the interpretation most favourable to the consumer should prevail”, and Art 5: “In the case of
contracts where all or certain terms offered to the consumer are in writing, these terms must always
be drafted in plain, intelligible language. Where there is doubt about the meaning of a term, the
interpretation most favourable to the consumer shall prevail.”
20
Act 8.078, 1990, Art 47: “Contract clauses will be interpreted in such a way as it is most
favourable to the consumer.”
It might be feasible that in this respect, the EESC (European Economic and Social
Committee) is opposed to any steps, such as the optional system, which would allow
for a review of the existing protection to safeguard consumers, who are the weaker
parties to the contract and who do not always have the means for seeking help.21
In Brazil, the consumer relationship focuses on the vulnerable party.22 The
vulnerability is the core principle of the National Policy of Consumers Relations
prescribed in Article 4 (I) of the Consumer Defence Code, and usually no discussion
takes place in the field to assert the concept of vulnerability. All consumers are
vulnerable, mainly because they are not in a position to have equal bargaining power
because of difficulties in obtaining accurate information from the supplier/retailer.
The same holds true for hypervulnerable persons,23 but it is also not quite the same
framework as regular consumers because the hypervulnerable persons have special
protection by special laws and a distinct approach taken by the courts. When they are
acting as a consumer, not only do the CDC apply but also their particular law, such
as the statute of disabled person.
On the other hand, in the EU, although recognising that the consumer is the
weaker party to the contract,24 the consumer is considered an average consumer who
is reasonably well informed and reasonably observant and circumspect.25 The
vulnerable consumers are those whose characteristics make them particularly vul-
nerable to unfair commercial practices, such as age, physical or mental infirmity or
credulity. These characteristics make these consumers particularly susceptible to a
commercial practice or to the underlying product and economic behaviour. In the
EU, only such consumers are likely to be distorted by the practice in a way that the
trader can reasonably foresee.26
Consumer vulnerability is one of the key challenges to be tackled in the near
future.27 Protection of vulnerable consumers has been the subject of reports by the
European Parliament28 and consumer organisations.29 It seems that the EU has
chosen a different approach than before, looking more at the reaction of the average
consumer, which so far has been perceived as active and rational. Contrary to this
view, there are findings that challenge the notion of the ‘average consumer’ and raise
questions about what can reasonably be expected of the average consumer and what
makes the consumer especially vulnerable.30
21
INT/608-CESE 802/2012-2011/0340 (COD), 3.13.
22
STJ REsp 476.428/SC, j.2005.
23
Elderly, children, disabled, etc.
24
Regulation (EC) 44, 2001, Recital (13): “In relation to insurance, consumer contracts and
employment, the weaker party should be protected by rules of jurisdiction more favourable to
his interests than the general rules provide for.”
25
Directive 2005/29/EC, Recital (18), Unfair business-to-consumer commercial practices.
26
Idem, Recital (19).
27
TNS Opinion & Social, Special Eurobarometer n 342 (2011).
28
Resolution 2011/2272 (INI), P7_TA(2012)0209.
29
ANEC-CHILD-2011-G-111/ANEC-DFA-2011-G-071 (2011).
30
Minor (2012).
‘Vulnerable consumer’ is a well-known expression, but there is no commonly

accepted or widely agreed legal definition for it by reason of the heterogeneity of this
group.31 Therefore, the EU Consumer Programme covering the period 2014–2020
has addressed in the Regulation on consumer programme issues linked to vulnerable
consumers.32
In other words, whilst in Brazil every consumer is conceived vulnerable per
principle (Article 4 (I) CDC) and hypervulnerable persons are special groups of
consumers embedded by special laws,33 in the EU the term vulnerability, inter alia,
stems from Directive 2005/29 on Unfair Commercial Practices. Vulnerable persons
in the EU are those individuals or groups of consumers who are vulnerable because
of their mental or physical infirmity, age or credulity, rather than all consumers.
This leads, inter alia, to questions whether a public policy is needed to deal with
the negative externalities created by the current consumer environment that places
the consumer in a vulnerable situation. Consequently, questions that are more
practical may arise. For instance, if the supplier is located outside of the home
country of the consumer having provided to the consumer transport, accommodation
and other tourist services in the way of package travel, that is to say, a complete
travel package, who is liable for non/or improper performance of the contract? It is
difficult for the consumer to pursue an action against a supplier in case of non/or
improper performance of the travel contract. The supplier may be the tour operator,
who offered and sold the tour, or the travel agent, who advised and recommended the
tour to the traveller and booked the trip on his/her behalf.
If the tour operators and travel agents are located in the traveller’s country of
residence, they are subject to the same jurisdiction, and usually the consumer may
sue them in the home country and file a claim under his or her national law.
Consequently, it is vital in contract terms to clearly determine the contractual parties.
On the other hand, if they are located in another country, international jurisdiction
may be the issue in determining the court.
It may be possible for a consumer who travels to have more than one country of
habitual residence. However, this situation indicates that there are more than one set
of laws, and each of them is performed in a specific country of habitual residence.
Can the traveller be able to choose which state’s law apply? Moreover, there are
cross-border procedures for small amounts of money. These are discouraged for a
consumer who seeks a solution to the travel damage. This is because under national
ordinary or simplified procedures, the costs of litigation are disproportionate to the
value of the claim, and/or the judicial procedures are too lengthy.
Based on this situation, the EU introduced an alternative procedure concerning
claims, which do not exceed €2000,34 and Brazil relies on small-claims courts as an
31
Opinion ECCG (2013).
32
Regulation (EU) 254, 2014.
33
Elderly, children, disabled, etc.
34
Regulation (EC) 861, 2007. This Regulation is under revision to increase the threshold up to EUR
10,000, COM (2013) 794 final.
alternative to solve claims with reduced complexity if the amount does not exceed
40 times the minimum wage,35 calculated at around €12,266 in January 2015.
Further issues, such as delay and cancellation, lost/damage or stolen luggage,
misinformation, overbooking and timesharing are problems faced by travellers with
regard to breach of contract.
Hereby not only norms on private contractual law were analysed but also those on
administrative law enforceable as a whole affecting the consumer market.
The aim of this work, after describing consumer law evolution, the travel and
tourism sector, and the travel and tourism contracts in Brazil and in Europe, is to
analyse the feasibility of placing the traveller as a consumer in a strict sense because
of the ‘specific vulnerability’ of the traveller at the time he/she is travelling. The
answer will be positive.
References
ANEC-CHILD-2011-G-111/ANEC-DFA-2011-G-071 (2011) How to protect vulnerable

consumers?
Benjamin AH, Marques CL, Bessa LR (2010) Manual de Direito do Consumidor, 3rd edn. Rev.dos
Tribunais, São Paulo
INT/608-CESE 802/2012-2011/0340 (COD). Proposal for a regulation of the European Parliament
and of the council on a Consumer Programme 2014-2020
Kennedy JF (1962, March 15) Special message to the congress on protecting the consumer interest.
Retrieved August 20, 2012, from The American Presidency Project: http://www.presidency.
ucsb.edu/ws/?pid¼9108
Minor J (2012) Consumer protection in the EU: searching for the real consumer. Eur Bus Organ
Law Rev 13(02):163–168
Opinion ECCG (2013) On consumers and vulnerability. European Consumer Consultative Group
Oughton D, Lowry J (2000) Textbook on consumer law, 2nd edn. Blackstone Press Limited,
London
Oxford (2005) Advanced learner’s dictionary of current english, 7th edn. Oxford University Press,
Oxford
Reich N, Micklitz HW, Rott P, Tonner K (2014) European consumer law. Intersentia, Cambridge
STJ REsp 476.428/SC. (j.2005). Agipliquigas S/A v Gracher Hotéis e Turismo Ltda. rel. Nancy
Andrighi
TNS Opinion & Social, Special Eurobarometer n 342 (2011) Consumer empowerment. Brussels
35
Note: According to the Sao Paulo State Act 15.624/14 the minimum wage is R$920,00.
Chapter 2
Brazil Consumer and Tourism Laws
2.1 Consumer Law
Consumer law in Brazil employs a clear layout of principles.1 The principle of

vulnerability, which underlies Article 4 (I) of the Consumer Defence Code as further
explained, is the cornerstone of consumer law. If the courts have not considered the
principle of vulnerability on consumer matters, the rights of individuals in many
important aspects would have been lost. The development of consumer law in Brazil
has not yet come to an end as the Senate works on pending bills to amend and
continuously improve the Consumer Defence Code.2
Going one step back, to understand the legal culture of consumer law in Brazil,
and why the principle of vulnerability as a presumption is applicable to everyone
who consumes, except legal entities that shall prove the vulnerability, it is desirable
to start with the evolution of the field.
2.1.1 Consumer Law Evolution
The Federal Constitution was the epicentre for a quiet revolution in the field of
consumer law. In 1934, the Constitution3 introduced the so-called protection of the
popular economy into the Brazilian legal system. That was a similar Consumer
1
The main principles: (1) the vulnerability of the consumer, (2) the transparency of the consumer
relationship (duty of information), and (3) the balance and harmonisation of interests on the grounds
of good faith.
2
For instance, Bill n 186/2018 amends the CDC to assign the consumer’s right for booking in
advance and for free flight’s seats operated into Brazilian territory. Bill n 68/2013 amends the CDC
to assign the nature of an extrajudicial power to the agreement settled before consumer protection
agencies.
3
CF, 1988, Arts 115 to 117.

10 2 Brazil Consumer and Tourism Laws
Protection law setting out competition law on a relatively primitive basis. The
protection of the popular economy had different consequences if compared with
what Brazil currently has now on consumer protection and competition laws.4
At that time, competition law was not yet formally articulated, but the country
enacted many rules. Examples include the following provisions on crimes against
popular economy,5 prevention concerning the abuse of the economic power,6 citi-
zen’s rights to file a claim through collective redress on particular matters,7 collec-
tive redress related to damages from misuse of the environment and other subjects,
including consumer matters.8
Before 1988, Brazilian law did not take a consistent approach to consumer law.
The subject took place in the national system only after the Federal Constitution of
1988. Thereby, it established that the state should provide, as set forth by law, the
defence of consumers. The Constitution tackled the consumer point twice, in Article
5 (XXXII) as a fundamental right and in Article 170 (V) as a principle of financial
and economic order.
Two years later, the Parliament enacted the Consumer Defence Code (CDC),
through Act 8.078/90, which entered into force in March 1991. The Code adopted a
legal model based on the intervention of the state in a wide variety of situations
concerning consumer protection. The Supreme Federal Court of Justice has stated
that the main focus of the CDC is not to regulate a particular field of law but rather to
protect a category of persons, even if such persons are indirectly also protected by
other special laws.9
In 1997, the Consumer Protection National System10 linked the PROCONs,11
public prosecutors, public defenders and consumer associations. They have devel-
oped work in an articulated and integrated form jointly with the National Consumer
Department.12
The PROCONs are public administrative agencies established in states and
municipalities with the function of protecting consumers. They are empowered
under the jurisdiction of each state to perform the services established by the
CDC. The services developed by PROCONs are carried out locally in each Brazilian
4
Pinheiro and Saddi (2006), p. 398.
5
Act 9.840, 1946.
6
Act 4.137, 1962.
7
Act 4.717, 1965, named ‘ação popular’ (Statute of collective redress).
8
Act 7.347, 1985, named ‘ação civil pública’ (Statute of collective civil redress).
9
STF REsp 351.750-3/RJ, j.2009, vote of Min. Cezar Peluso.
10
According to Decree 2.181/97, the acronym of the Consumer Protection National System is
SNDC (Sistema Nacional de Defesa do Consumidor).
11
PROCON is a Public Agency of Protection and Defence of Consumers (Fundação de Proteção e
Defesa do Consumidor).
12
The National Consumer Department: it is known in Brazilian Portuguese as Secretaria Nacional
do Consumidor (SENACON).
2.1 Consumer Law 11
Federal Unit, which so far congregates 838 administrative agencies placed on

27 Federal Units, which comprise 26 states and one Federal District: Brasilia.13
The PROCONs have a significant role. They ensure an appropriate level of
consumer protection, inspecting and monitoring the market activities, imposing
penalties and/or restrictions to irregular businesses. This is the case, for example,
of the tour operator that complained in the court against PROCON about the
application of a penalty in the amount of R$190,648.89.14 The business announced
in a newspaper a misleading advertisement of a package travel. The total amount of
the price payable by instalments was different from the payment in cash. No clarifi-
cation was made about the difference on the price. In addition, the offer was
published in foreign currency, which the consumer cannot immediately understand.
Therefore, the advertisement was misleading under consumer legislation.15
A claim brought by the consumer against a supplier before PROCON provokes
the opening of an administrative procedure. If the supplier defends itself before
PROCON, the agency, under specific circumstances, can decrease the administrative
punishment. In addition, PROCONs also maintain a database where they must
record substantiated claims.16 Based on administrative information collected, they
publish the results of claims through a list. From that list, it is possible to identify
suppliers that do not respect consumer’s rights.
Thus, the consumer can either: (1) bring a claim to PROCON (there will be an
administrative claim) or (2) file a claim in court (there will be a legal case). The
administrative claim does not exclude the legal case. The consumer can rely cumu-
latively on both procedures.
As long as consumer protection and unfair competition are somehow intertwined,
Brazil also seeks to protect business competition in equal and fair terms. That means
the direct protection of the competition will indirectly reach the consumers’ interests.
Unfair competition might confuse the consumer as to the source of goods or services
through misleading advertising, combined prices between companies or any anti-
competitive conduct developed by business companies. Thus, since 1990, there have
been antitrust law rules17 regulating accurately anti-competitive conduct of business
companies.
Even so, only in November 2011 did the Parliament enact Act 12.529. It
reinforced the rules on competition law and compiled several provisions to prevent
offences against the economic order.
13
See Procons’ list at: http://www.portaldoconsumidor.gov.br/procon.asp?acao¼buscar website
visited on 15.06.2017.
14
Amount converted into euro: €63,549.63 in August 2014.
15
TJSP Ap.0009326-39.2011.8.26.0053/SP, j.2013.
16
Act 8.078, 1990, Art 44.
17
Act 8.137, 1990, on crimes against the tax system, economic and consumer relationships, and
other matters; also Act 8.884, 1994 on prevention and repression of offenses against the economy
among other matters.
Although the protection of competition (antitrust law) and the protection of

consumers (consumer law) have common characteristics, they operate in different
ways. Whilst consumer law provisions protect consumers, competition law pro-
visions protect suppliers (particularly SMEs). On contractual matters, the protection
is related to B2C and B2B contracts being the latter under commercial law and
competition law rather than consumer law.
Beyond these developments in the legal system, it is noteworthy that consumer
law entered into the programmes of law schools.18 It was enlarged by the approval of
the Federal Constitution of 1988 but as an optional alternative to traditional lec-
tures.19 Later, consumer law had gradually attracted a growing interest, being
currently part of most of the programmes of law schools in view of its characteristic
of a new law.
2.1.2 Consumer Law as a Field of Law
Although consumer law is intertwined with competition law, its core elements are
outside of the sphere of competition or commercial law. Consumer law has auton-
omy over civil law. The ones who have formed this opinion state that consumer law
is an independent field of law. As the law is a mixture of public and private, it is
called mixed law, and the main focus is the collective aspects of the rights.20
In the beginning, not everyone agreed that consumer law is a separate field of law,
especially if the field is intertwined with public and private law, meaning a frag-
mentation trend in the general contractual (civil/private) law. Consumer law
extracted a number of legal acts from commercial law. Therefore, the problems
inherent in the law applicable emerged. For example, under commercial law, if a
company enters in a bankruptcy process, the administrator of the legal process of
bankruptcy may decide to fulfil the offer or not. However, under the CDC, the
consumer is entitled to enforce an offer that was accepted in advance.21 Hence,
unlike factual impossibility to fulfil the commitment announced, the administrator
must accept the consumer order to perform the contract.22 Although it reinforces in
theory the supremacy of the consumer system over commercial law, in practical
terms it may be difficult to foresee.
One of the main points about consumer law is that a given subject of law is
recognised as a field of law if singular principles and norms are to be found
particularly related to that field. Those principles and norms contribute to identifying
18
Alves (2010), p. 338.
19
Portaria 1.886, Ministry of Sport and Education, 1994, Art 6, (II), sole paragraph.
20
Nunes and Serrano (2005), pp. 148–149.
21
Act 8.078, 1990, Art 35.
22
Rocha (2010), pp. 90, 92.
2.1 Consumer Law 13
the field and differentiating it from other fields of law.23 Under consumer law, there
are three main principles: (1) the vulnerability of the consumer, (2) the transparency
of the consumer relationship (duty of information) and (3) the balance and
harmonisation of interests on the grounds of good faith.
Prior to the CDC or the renewed Civil Code (2002), good faith was noted as a
principle rather than a rule of law. After the CDC and the Civil Code, good faith
became enforceable as a rule. For instance, Article 51 (IV) of the CDC states that any
obligation taken as unfair or abusive or that may place the consumer in an exces-
sively disadvantageous situation or be incompatible with the principles of good faith
and equity is considered ‘Abusive Clause’.
In fact, where one can be involved in terms of consumer relationship, there would
be no doubt that the protection treatment is available under the consumer law system.
The system contains specific principles, which should serve as a template for
drafting the rules.
In this context, the leading principle of such system is the principle of vulner-
ability, which implies the principle of equality. That is to say, in general terms,
relief is available if the weaker party is unable or is for some other reason in need of
special protection on account of an imbalanced relationship. To Brazilian Law
unequal treatment means that the parties have to be treated in proportion to their
inequalities. This is a fiction of law to eliminate inequality and promote equality in
order to ensure that justice is done. The contract clauses have to be interpreted in a
way that is most favourable to the consumer.24
For example, if the consumer travels regularly to other cities on behalf of his/her
business, the insurer cannot argue that regular traveling increased the risk of a breach
of contract. The TJSP decided that according to the CDC, if the contract is a ‘contract
of adhesion’, the interpretation ought to be most favourable to the consumer.25
Concerning international law or international treaties, the question arises on the
validity of such treaties. How does international private law work in the Brazilian
law system? On consumer relationship, any treaty can apply only in a subsidiary
function when necessary and appropriated, alongside the provisions of the CDC.
Article 7 of the Consumer Defence Code sets forth as follows:
Art 7. The rights set forth in this Code do not exclude any other rights that may come as
a result of international treaties or conventions ratified by Brazil, of internal legislation,
regulations set forth by administrative authorities under appropriate jurisdiction, as well
as any other rights that stem from the general principles of Law, analogy, custom and
equity.
Then a comparison between the national laws and the Montreal Convention may
appear different when examined by the courts insofar as any compensation differs
23
Bandeira de Melo (2003), p. 45.
24
Act 8.078, 1990, Art 47.
25
TJSP Ap.992.05.032177-2/Campinas, j.2010.
significantly from each other. Whilst the provisions of the Montreal Convention26
set a maximum limit of compensation calculated by applying the special drawing
rights (SDR), as defined by the International Monetary Fund, the Brazilian Code of
Aeronautics establishes ‘Limits of liability’ calculated in public bonds, the so-called
‘OTN’.27 In contrast, the Consumer Defence Code and the Civil Code do not impose
any limitations at all, allowing judges to decide on the amount requested by parties,
as compensation, without restrictions.
As a result, air carriers prefer the application of the Montreal Convention, which
governs contract for international carriage by air,28 and the Brazilian Code of
Aeronautics, which applies to contract performed for domestic carriage by air.
Contrary, passengers usually claim for the application of the Consumer Defence
Code because it provides many ways to facilitate consumers’ defence and ensures
appropriate protection of their rights before the courts.29
In a particular set of circumstances where international treaties or special or
sectoral laws would be used, whether there are disproportionality between the
statutes, relative fault, personal injury or imbalance between parties boosting the
vulnerability or the disadvantaged condition of the consumer, the Consumer Defence
Code has emerged with a considerable force. Its influence extends far beyond merely
bestowing the hierarchy of sources of law on a preordained list of statutes and a
preordained legal system of law.
As said, if the clauses of the contract have to be interpreted in the way more
favourable to the consumer,30 the courts will consider the different types of rights
granted by different laws considering the existence of international treaties. In the
case of international air carrier liability, the Superior Court of Justice (STJ) has not
hesitated to use the treaty, but simultaneously with the Consumer Defence Code, for
full compensation of immaterial damage.31
According to the Supreme Court of Justice, the focus of the CDC is not to regulate
a particular field of law but rather to protect a category of person, even if other
sectoral law also protects such a person.32
Nevertheless, consumer law is a field of law in Brazil. The STF stated that the
protection of the consumer is a reality in most law systems of civilised countries. It is
not difficult to realise the new dimension for this legal phenomenon nearly unknown
up to the last century. The man of the twentieth century is living under the new
26
Convention for the Unification of Certain Rules for International Carriage by Air—Montreal,
28 May 1999, Art 23.
27
Act 7.565, 1986, Art 257, 260, 262, 269.
28
Example: The various kinds of air contracts or contract clauses have tended to feature quite
strongly that ‘(..) the Convention governs and in most cases limits the liability of carriers for death
or personal injury and in respect of loss of or damage to baggage. See notices headed Advice to
International Passengers on Liability and Notice of Baggage Liability Limitations.’
29
Sanches Lima (2012), p. 3.
30
Act 8.078, 1990, Art 47.
31
32
STF REsp 351.750-3/RJ, j.2009.
2.1 Consumer Law 15
model of association: a mass consumption society characterised by an increasing

number of goods and services, by credit and marketing domination, as well as by the
difficulty of access to justice. These aspects determine and shape consumer law as an
independent field of law.33
Therefore, nowadays, law experts, Brazilian courts and law faculties have
recognised consumer law as an independent field of law comprehensively, where
the principle of vulnerability has become one of the central template for explaining
contemporary consumer law and policy.
2.1.2.1 The Consumer Defence Code
The CDC is a statute that comprises most of the features of the traditional earlier
laws, such as civil, administrative, criminal, commercial and procedural laws. The
Code regulates the whole matters concerning consumption of goods and services.
The legal nature of the Code was set up with a view on a microsystem of law. The
intention of the CDC sometimes entails the filling in of gaps with appropriate tools.
For instance, a legal provision dealing with fault liability (guilt) through a special
statute could not be applied in view of the fact that the CDC carries the main
principle of no-fault strict liability (tort law).
The provisions of the CDC are targeted at ‘public interest’, which is best for the
society as a whole. The judge is entitled to scrutinise any question related to
consumer relationship by himself without parties’ request. On consumer cases the
‘principle of disposition’ or private disposition, which determines the rights of the
parties at the time they entered into a contract do not apply. Because of the ‘public
interest’ involved in consumer cases, the public prosecutor has a typical function of
defending groups of consumers in any collective redress.34
As it happens, specific sectoral legislation (e.g., insurance, transportation, banks,
food and beverage) ought to be created, developed or revised in line with the CDC.
It would not be acceptable for the transportation sector to become embedded in
legislation where provisions would be applicable in cases of accidents or defect of
services exclusively grounded on fault liability (guilt). Such provisions would be
created against the principle of no-fault strict liability carved by Article 6 (VI) of the
CDC. Authors35 say that in case of conflict between the CDC and the sectoral
legislation, the CDC must prevail. The actual doctrine36 leads to a substantial
harmonised interpretation of the law than with the formal concept of conflict,
which distinguishes which one of the laws will be applicable.
Prior to the Consumer Defence Code, civil law and commercial law addressed
private relationships separately. Whilst civil law is the law where private individuals
33
STF ADIN 2.591-1/DF (2006), p. 156.
34
Act 8.078, 1990, Art 81, Sole paragraph (III), Art 82 (I), 92.
35
Nery and Nery (2006), p. 181.
36
Benjamin et al. (2010), pp. 108–109.
have rights and duties, commercial law is the law dealing with the sale and
distribution of goods, negotiable instruments and financing of credit transactions
on the security of the goods sold.
Some private relationships that before were addressed under civil or commercial
law were brought under the protection of consumer law. The criterion to deter-
mine whether consumer law should apply to a conflict between parties is the ‘con-
sumer relationship’. Any relationship in which one person or legal entity behaves
like a consumer, purchasing or using goods or services as a final addressee, is a
consumer relationship. Hence, the Consumer Defence Code applies always. The
Civil Code, the Commercial Code or even international treaties may apply to the
relationship only in a subsidiary function, if appropriated and needed.37
Thus, the core of the Brazilian consumer law focuses first on the relationship
established between the supplier and the consumer rather than exclusively on the
consumer as a natural person. The consumer is usually an individual or a legal entity
(if vulnerable). In addition, bystanders and victims of accidents are also considered
consumers. Thus, the CDC does not cover all kinds of trade and contractual relation-
ships but, again, covers only those set up as a consumer relationship (B2C) related to
private consumption.
More significant is the presumption that a natural person must always be a
consumer when the other party is a supplier. For a legal entity, there is another
criterion—vulnerability must be proven.38 That is to say, to obtain the CDC’s
protection, the natural person does not need to prove vulnerability because it is
presumed. On the contrary, the vulnerability of the legal entity must be proved. If so,
the legal entity can invoke the CDC too.
The Consumer Defence Code is a microsystem rather than a particular statute
listing rights and duties of the consumer and supplier. The basic idea was exactly to
intertwine different sources of law in order to reach more protection for the con-
sumer. The sources are: (1) civil law (offer, advertising, contracts, commercial
practices, liability and definitions, all in Articles 1 to 54 of the CDC), (2) adminis-
trative law (about the Consumer Protection National System, the PROCONS, fines
and penalties, all in Articles 55 to 60 and 105 to 107 of the CDC), (3) criminal law
(prevention of disorder or crimes for the protection of consumption creating special
penalties, all in Articles 57 to 80), (4) procedural law (about inversion of the burden
of proof, special jurisdiction for consumers, collective redress and individual law-
suit, all in Articles 81 to 104), (5) the final provisions, all in Articles 109 to 119 of the
CDC.39
The Code was an achievement in many different ways for the Brazilian society.
Authors emphasise that the CDC has general provisions and principles rather than
laws regulating consumption relationship in a specific sector (e.g., health aid, air
37
Idem, p. 113.
38
Idem, p. 85.
39
Idem, p. 48.
2.1 Consumer Law 17
carrier). Hence, consumer law is not a fold of the field of public law or private law. It
has specific parameters and guiding principles. 40
The CDC seeks to define not the contract of consumption or the act of consump-
tion but rather the consumer relationship. This term is broader than contracts or act
of consumption. According to the CDC, the elements of the consumer relationship
are as follows: (a) the legal persons (supplier and consumer), (b) the objects (goods
and services), the scope (the consumer acquires goods or uses services as a final
addressee).41 The Code accepts all kinds of contracts to validate the consumer
relationship, such as verbal contract, written contract, contract concluded by mail,
contract of adhesion and the like. The CDC also covers relationships that are not
accurately considered a contract, for example, the use of public services such as
electricity, water and so on.42
Beyond the CDC’s rules, there are decrees.43 These were introduced on a
piecemeal basis into the system regulating the provisions of the Code and dealing
with particular problems. The most recent decree was enacted in 2013. It sets forth
the significant provision that every website used to offer or conclude a consumer
contract shall disclose in a prominent way the following information: (1) the busi-
ness name and the number of the registration with the Tax Department (CPF or
CGC); (2) the physical and electronic address, as well as other contact information;
(3) the characteristics of the goods or services, including the risks that they might
present to the consumers’ health and safety; (4) any additional cost such as insurance
or delivery; (5) the conditions of the offer, such as the means of payment, availabil-
ity, form and deadline to conclude the service or delivery of the goods; (6) the offer’s
restrictions.44
In addition, businesses that sell through the Internet shall confirm immediately
that they received the acceptance of the offer by the consumer. In a row, the business
shall send the contract to the consumer in a way that allows him/her to keep or
reproduce it promptly after the conclusion of the contract. Moreover, the business
shall use safety and efficient features to facilitate the payment.45
If the business that sells through the Internet does not fulfil the legal requirements,
PROCON must impose a penalty of up to R$6.2 million46 or, as required by the
CDC, suspend the website’s activity through an administrative procedure.47
40
Nunes and Serrano (2005), p. 8.
41
Nery Jr., Nelson apud De Lucca (2008), pp. 105–106.
42
43
Decree 2.181, 1997 on National Consumer System—SNDC, and Decree 7.962, 2013 on elec-
tronic commerce.
44
Decree 7.962, 2013, Art 2 (I) to (VI).
45
Idem, Art 4 (I) to (VII).
46
This is around €1.8 million in 2015.
47
Act 8.078, 1990, Art 57 Sole paragraph.
As said, PROCONs are public administrative agencies. The services are carried
out locally in each Brazilian Federal Unit. Each PROCON is entitled to open
administrative files leading an administrative procedure or bring a judicial collective
redress to the court. Therefore, PROCONs are jointly entitled, with other public
entities, to defend the consumer in court through judicial collective redress.48
2.1.2.1.1 Exclusion of Liability
Regarding liability, Brazilian law allows three exclusions: (1) by fault of the victim,
(2) by fault of a third party and (3) by extraordinary circumstances (force majeure).
Thus, if the damage occurred because of the consumer’s active or passive behaviour,
it is considered fault of the victim. Therefore, the burden of proof lies with the
supplier, who ought to assert the exclusion of liability.
The CDC adopted the system of no-fault strict liability (tort), that is, the liability
is not absolute. According to the CDC, the manufacturer, producer, builder or
importer will not be liable if it proves the following: (1) it did not put goods in the
market; (2) even though the goods have been put in the market, the defect does not
exist; and (3) there is an exclusive fault of the consumer, or the fault is attributable to
a third party.49 These are exclusions of liability.
2.1.2.1.2 The Supplier
The supplier is a legal person (individual or entity) strictly liable for the quality of the
goods and services supplied. The CDC broadly defines the concept of supplier as
follows:
Art 3. The supplier is every individual or legal entity, of public or private nature, domestic or
foreign as well as any other person involved in the activities of production, assembly,
creation, construction, transformation, importing, exporting, distribution or commerciali-
zation of goods or services.
The concept is wide enough to allow the Consumer Code to cover a greater
number of relationships between the supplier and the consumer. The CDC adopted a
criterion addressed to activities typically performed by professionals, like
commercialisation, production, importing and exporting. The activities must indi-
cate a customariness of the tasks, such as transformation and distribution of prod-
ucts. The CDC excludes contracts concluded between two consumers (C2C). Those
contracts are therefore within the scope of the Civil Code.50
48
Idem, Art 82 (III).
49
Act 8.078, 1990, Art 12 § 3 (I) (II) (III).
50
Benjamin et al. (2010), pp. 99–100.
2.1 Consumer Law 19
The Consumer Defence Code also applies to financial institutions,51 the Union,
states and municipalities (and their public companies) as they are all suppliers when
providing services such as electricity, water or any other service.
Although the concept of supplier covers a great number of activities, it does not
differentiate a supplier from a seller or a retailer. A distinction would have an
influence precisely on contracts of tourism that combine a chain of providers. This
is because the travel agent is either a seller or a retailer of package travel, but the
hotel and the carriage companies are suppliers of travel and tourism services
included in the package travel.
Even so, outside of the Consumer Code, there is the Tourism Statute. It envisages
a narrow need to shape a concept in regard to suppliers of travel and tourism
services. Article 21 carved the expression ‘tourist services providers’, pointing out
six categories of providers: (1) tourist accommodation, (2) tourism agencies, (3) tour-
ist carriers, (4) organisers of events, (5) theme parks and (6) tourist camps. There-
fore, the notion of supplier carved by the statute is still far from clarifying the
different roles of the players in travel services. It replaced the term supplier to
‘tourist services providers’ as a whole, without defining it accordingly.
Moreover, according to the Tourism Statute, an agency of tourism is a legal
person that either intermediates services between suppliers and consumers or pro-
vides those services directly to the consumer.52 The agency is liable for providing
every service acquired by the consumer through intermediation or suggestion.
Taking into account that the relation between the agency and the consumer is a
consumer relationship, the liability of the supplier on account of failure of any
service is a matter of strict liability under Articles 12 and 14 of the CDC.53 Under
the CDC, liability is not divided, and everyone in the chain is accountable as supplier
because they are jointly liable.54 The different roles of suppliers in travel and tourism
services are not relevant in view of the principle of solidarity.
As the liability is not absolute, the supplier can exclude liability after proving one
or more grounds for exclusions of liability.55 Thus, if the damage occurred because
of the consumer’s active or passive behaviour, it is considered fault of the victim, but
the burden of proof will remain with the supplier.
2.1.2.1.3 Goods and Services
Along with the concepts of consumer and supplier, there are other key concepts in
the CDC on which the consumer relationship is based, as for instance the concepts of
goods and services:
51
STJ Súmula 297 (2004).
52
Act 11.771, 2008, Art 27.
53
TJSP Ap.9055447-05.2009.8.26.0000/SP, j.2012.
54
Act 8.078, 1990, Art 7, Sole paragraph.
55
Act 8.078, 1990, Art 12 § 3 (I) (II) (III).
Article 3 (. . .)
§ 1. Goods are any good, portable or not, material or immaterial.
§ 2. Service is any activity available in the consumer market, for which there is financial
compensation, including those derived from bank activities, with financial, credit, or insur-
ance nature, except those resulting from labour relations.
Whereas the travel and tourism sector is based on services, the focus in the
following will be on ‘services’ rather than ‘goods’.
The ‘service provider’ will charge a price for the service. Although the law uses
the term ‘financial compensation’, it actually indicates that there is a price, whereas
without it there is no reason to provide the service.
In this context, one issue arises from the misleading idea of free-of-charge
services, such as parking the car at the hotel’s parking place or permission granted
to the passenger to carry extra luggage free of charge. Actually, the purpose of the
supplier’s message is to serve as an advertisement for the sale of the service because
in such an extension, the free charge is certainly included in the full price of the
service offered by the supplier.
Furthermore, whilst compensation56 is the only element that characterises the
service, gratuitousness has become a topic of great discussion because of the
growing commercial practice of sending free samples, free travel miles or awards
on purchases of package travel. Article 39 of the CDC, which governs abusive
practices, subjects such a commercial practice to its coverage.
Courts have decided on pro-consumer in cases where the supplier attached
another good or service free of charge for a given period. Usually, the supplier
withdraws from the bank account of the consumer, between 3 and 6 months, after the
regular payment occurs. This is the case of life insurance offered as an award in view
of the purchase of other insurance, as for example travel insurance, house insurance
and business insurance.57
Actually, there is more experimenting going on in commercial practices at present
than never. The use of credit card in purchasing a travel ticket is one example
whereby travel insurance offered by a third party was tied to it. The courts have fully
imposed liability on any supplier in the chain of suppliers when breach of contract
occurs.58
Sometimes the commercial practices go beyond a mere business model. It is a fact
that some suppliers have insisted on discriminating consumers. If the consumer is
prompt to pay for the good or service, the supplier cannot refuse a sale. The supplier
cannot prefer one consumer to the other.
To eliminate the negative discrimination, the CDC considers it an abusive
practice to avoid selling goods or services directly to one that is willing to acquire
it and can afford to pay for it. The only exception refers to cases of intermediation
56
Idem, Art 3 Para 2.
57
TJSP Ap.282.996-4/7-00/SP, j.2009.
58
TJSP Ap.0226796-31.2006.8.26.0100/SP, j.2012.
2.1 Consumer Law 21
regulated by special laws.59 Nevertheless, this is not as simple as it may appear.

Sometimes the practice of refusing to sell a good or service to a consumer means that
the stock is finished or there is lack of capacity to perform the service. The supplier
might be able to protect itself by informing consumers in advance of the quantity of
goods available in stock or the limited availability of the services offered.
Particularly noteworthy is Article 39 (II) of the CDC. It sets forth as abusive
practice cases where there is quantity of stock available and the supplier refuses to
accept consumers’ request.
This is the case where a consumer purchased goods with a check without
sufficient funds and then wants to buy again at the same shop and pay
by check. The supplier refuses to sell to the consumer by reason of the previous
bad experience, it is to say, the supplier infers that the payment would be through a
rubber check . Another example is a taxi driver who avoids providing service to a
consumer in view of the short distance of the track requested.60
Although these examples are feasible to happen, it seems difficult to find an
immediate solution in a stand-alone basis. Unfortunately, the mere fact that there is a
‘violation of rights’ such as abusive practice does not mean that it is economically
feasible to prove the damage before the court.
Moreover, in regard to goods and services, there are discussions related to ‘tying
sale’ and ‘combined sale’ in a legal/commercial context because both serve different
purposes, one to tie in and the other to arrange. That is to say, ‘tying sale’ is one in
which the consumer is forced to purchase product A on the condition that some other
product B be purchased with product A. The effect of ‘tying sale’ may be to
substantially lessen competition or to create monopoly. It is usually known as an
unfair method of competition.61 On the other hand, ‘combined sale’ is a prearranged
combination of different components (goods or services) that cannot be separated
without losing the good’s or service’s natural essence. The key aspect is essentiality
inasmuch as components combined are lawful if the services or accessories are
technically indispensable for the functioning of the main good or service.62
In Brazil, the so-called ‘combined sale’ or ‘combined offering’ is not forbidden,
but its deviation,63 the ‘tying sale’, is. In this regard, the interpretation of Article
39 (I) of the Consumer Defence Code must always be in favour of the consumer
inasmuch as the supplier is free to sell goods or services where the components were
defined in advance, but the consumer should always have the option to acquire
separate components.
For instance, the travel agent, who sells or offers a package travel put together by
the organiser, including health insurance, is liable for the non-fulfilment or improper
fulfilment by the insurance company. The courts have decided that if it is the
popularly known ‘tying sale’, where the consumer has no discretion to decide the
59
Act 8.078, 1990, Art 39, IX.
60
61
Act 12.529, 2011, Art 36 § (3) item I, d) XVIII.
62
Gloria (2003), p. 145.
63
Marques (2011), p. 841.
terms of the contract, the travel agent, the tour operator and/or any provider in the
chain will be liable. It meets the ‘principle of solidarity’ under the Consumer
Defence Code.64
2.1.3 Consumer
Neither traveller nor consumer traveller has a particular definition prescribed by

law. The law defines ‘consumer’, and the definition is fragmented, covering not only
natural person, the individual as a physical person, but also legal entity that behaves
as a final purchaser or addressee.65
In addition, the concept of consumer is not only limited to contractual obligations,
but victims of accidents in any event connected to the consumer relationship are also
counted as consumers. Furthermore, those subjected to unlawful acts in
pre-contractual duties such as misleading advertising and unfair commercial prac-
tices, whether or not the victim is a purchaser or a final addressee, are consumers.66
The provisions of the CDC are a milestone in the definition of consumer:
Article 2. A consumer is any natural person or legal entity who purchases or uses goods or
services as a final addressee.
Sole Paragraph: The concept and status of consumers is extended to a collective of
individuals, even if they are indeterminate, who have participated in any consumer
relationship.
Article 17. For the purposes of this section, all victims of the event have the same rights
as consumers.
(The section refers to Liability as to the Fact of the Product and Service)
Article 29 - Any person exposed to what is described in this chapter and the next will be
considered equal to consumers.
(Chapter V refers to Commercial Practices and Chapter VI refers to Contract Protection).
The concept of consumer in the CDC67 focuses particularly on the activity

exercised by a person in a consumer relationship rather than on the personal charac-
teristics of a natural person. The wording of these provisions stresses that is equal to
consumer: the natural person or legal entity as a final addressee,68 who may have
participated in any consumer relationship,69; all victims of the event70 the so-called
bystander, and any person exposed to commercial practices prescribed in the CDC71
64
STJ REsp 1.102.849/RS, j.2009.
65
Act 8.078, 1990, Art 2.
66
Idem, Arts 17 and 29.
67
Act 8.078, 1990, Arts 2, 17, 29.
68
Idem, Art 2.
69
Idem, Art 2, Sole paragraph.
70
Idem, Art 17.
71
Idem, Art 29.
2.1 Consumer Law 23
There is, however, as further discussed,72 a different interpretation concerning

legal entity as a consumer. In a wide sense, the CDC presumes the vulnerability of a
natural person, whilst the legal entity must prove its vulnerability to the court.
The defence of consumers is a constitutional principle in the sense of fundamental
right of the individual. The Constitution promoted the defence of the consumer,73
and therefore the CDC created new rights. The CDC has affected the way judges
conceive consumer contract. The Code integrates the liability for sale of goods or
services when the consumer is involved, whether there is a contractual relationship
or non-contractual relationship.74 The rules underlie the national legal system as a
whole.
An example of non-contractual relationship: according to the STJ in view of an
accident that occurred in 1996 at a Shopping Centre in the city of Osasco, all victims
of the event were counted as consumers. It was possible to identify that the causes of
the accident were failures in the services of the building, defects of the goods used in
the construction and negligent management, everyone in the building in that
moment, with or without a contract, was a consumer. Therefore, according to the
principle of solidarity, which protects all victims of the event, every supplier was
liable under the protective scheme of the CDC.75
The Sao Paulo state’s court granted compensation for personal injury and mate-
rial and immaterial damages, under the protection of the CDC, to a woman who after
parking her car in the parking garage of a shopping centre dropped down into an
obstacle burdened with various items. Because of the accident, she had a surgery in
her arm. The company argued that it was an accident, which did not involve a
consumer relationship. However, the Sao Paulo Court of Appeal (TJSP) deemed that
the accident was caused by the company’s negligence. The parking area was not well
signalled. Thus, the CDC, which is more favourable to her, ought to be applied.76
The key aspect of the definition of consumer is relational. In order to be a
consumer in a contractual relationship, the other party to the contract must be a
supplier, and therefore the connection of a consumer relationship between the
consumer and the supplier is formed (B2C). The Consumer Defence Code considers
everyone a consumer, even the user. Such a wide concept allows for businesses,
legal entities and professionals purchasing goods or services under special circum-
stances to be consumers.77
Therefore, any natural person or legal entity that purchases goods or services for
its own need is an end consumer (consumidor final), the so-called final addressee.
72
See Sect. 2.1.3.1.
73
CF, 1988, Art 5 (XXXII): The State will promote by law, the defence of the consumer.
74
Act 8.078, 1990, Art 17, 29.
75
STJ REsp 279.273/SP, j.2003.
76
TJSP Ap.990.10.136973-7/SP, j.2010.
77
Benjamin et al. (2010), pp. 79, 83.
However, the legal entity needs to prove its vulnerability against the supplier, whilst
the natural person not.78
Likewise, the Supreme Federal Court (STF) stated that
the concept of consumer has an economic meaning, for instance, taking into account the
person, who in the market of consumption acquires goods or services as final addressee,
assuming that s/he behaves like that in the fulfilment of his own need and not for the
development of another business activity.79
This significant judgment concluded in 2006 clearly endorsed that consumer

relationships with a financial nature shall also be covered by the CDC.
In respect of consumer relationship’s classification, there are three distinctions:80
(1) the main consumer relationship (based on the scope of consumption, the own
need); (2) the secondary consumer relationship formed through accident81 in view of
the defect or failure of a good or service affecting others around, for example the
bystander, employees, employers and pedestrians, and causing physical hurt and
discomfort to them; (3) the incidental relationship formed because of persons who
may be incidentally exposed to commercial practices,82 as for instance advertising
and promotional materials at the time they are in a shopping centre/department store
as potential consumers being targeted by the supplier. In this latter situation, the
person is equal to a consumer and therefore defined as an incidental consumer.
In this way, the concept of consumer is fragmented. It takes into account the
contractual relationship between the parties (consumer and supplier) or their present
situation (by accident or incident), rather than their personal characteristics.
2.1.3.1 Consumer Vulnerability
Of particular relevance in respect of consumer is the principle of vulnerability found

on Article 4 (I) of the Consumer Defence Code. The provision of vulnerability is
significantly broader. The notion of vulnerable consumer stems from the Code based
on the principle of vulnerability in abstract:
Art 4: The objective of the National Policy for Consumer relationships is to assist consumers
in their needs for protection, imposing respect for the consumer's dignity, health, and safety,
protecting their interests and ensuring transparency and harmony in consumer relation-
ships, based on the following principles: (text added by Act 9008 of March 21st, 1995)
I - recognition of consumer vulnerability in the consumer market;
II - government action in order to effectively protects the consumer; (. . .).
78
See further Sect. 2.1.3.1.
79
STF ADIN 2.591-1/DF (2006).
80
Marques (2011), pp. 109, 394, 395.
81
Act 8.078, 1990, Art 17.
82
Idem, Arts 29, and 2 Sole paragraph.
2.1 Consumer Law 25
Vulnerability is multiform. It is an indefinite and vague concept, a weakness that

can stem from a range of situations and circumstances, without an accurate definition
but with several practical effects. Under Brazilian law, consumer vulnerability has it
grounds in an absolute legal presumption (not relative).83 It is a state of powerless-
ness. It arises from imbalanced interactions in the market.
Although vulnerability is difficult to define as a single concept, Brazilian con-
sumer law and court rulings are flexible enough to consider the notion of vulnera-
bility in applying most rules. The notion of vulnerability is tied with the notion of
weaker party or unequal relationship (on account of certain conditions and circum-
stances) or is also due to a dominant position that may be identified in the other party
of the contractual relationship.84
The principle of vulnerability set forth by the CDC does not expressly mention
the notion of vulnerable consumer at all; rather, the Code mentions ‘consumer
vulnerability’. The Superior Court of Justice usually emphasises the notion of
consumer vulnerability that is being developed by authors. Consumer vulnerability is
classified into the following: technical vulnerability (the lack of knowledge in regard
to the goods or services in the consumer relationship), legal vulnerability (the lack of
legal knowledge), factual vulnerability (circumstances in which there is a lack on the
economic, physical or even psychological capacity of the consumer) and, more
recently included, informational vulnerability (the lack or insufficient information
regarding the goods or services that may influence in the consumer choice
processes).85
As it happens, it is feasible to identify the notion of vulnerability a priori, in
abstracto, or, to the contrary, to identify and locate it a posteriori, in concreto, where
the latter depends on how the situation of vulnerability might be shown. The
Brazilian legislator has opted for a presumption of consumer vulnerability in a
way that every consumer is conceived typically vulnerable because he/she in
principle does not have private autonomy in the consumer relationship. The con-
sumer is exposed to several types of commercial practices.86
Whilst there is a presumption of legal vulnerability addressed to natural persons
(because of lack of legal, accountancy or economic knowledge), the same does not
hold true for individual professionals or legal entities, which have the minimum
legal, accountancy and economic knowledge to exercise economic activity or at least
have lawyers and experts to obtain advice from before compromising themselves in
the market.87 Thus, the principle of vulnerability when addressed to professionals or
legal entities is not a presumption equally assumed by the courts in the same way that
it is for the consumer as a natural person. On the contrary, although a professional or
legal entity may also be a consumer, as set forth by Article 2 of the CDC, the
83
Marques (2011), p. 304.
84
Marques and Miragem (2012), p. 162.
85
STJ REsp 1.195.642/RJ, j.2012, (4).
86
87
Idem, pp. 155, 156.
discussion on whether to apply the CDC is not entirely smooth, whereas the legal
entity must prove the vulnerability to be under the protection of the CDC.88
Of particular relevance in commercial practices is the duty of information, which
in a consumer relationship is extremely important. If there is a lack or defect of
information, it is translated as a minus, as vulnerability, insofar as the duty to provide
accurate information belongs to the other party (the supplier). The lack of informa-
tion is the major factor of imbalance in a consumer relationship, in which the
suppliers are the experts, the ones with the information.
Therefore, taking into account the vulnerability stemming from the lack of
information as a presumption, it turns out that the supplier shall compensate this
social risk (lack of information) providing full information according to the manda-
tory provisions of consumer law.89
Besides, the Superior Court of Justice has emphasised that there are new forms of
vulnerability suitable to attract the CDC to the contractual relationship. For instance,
in a business relationship, beyond the hypothesis of vulnerability already known
through the doctrine and court decisions, the weaker position of one party90 to
conditions imposed by the other party,91 considering the aspects of the legal case,
may characterise vulnerability. The party will be vulnerable when acquiring goods
or services other than of the expertise area of the business. This situation enables the
court to assess the possibility of applying the CDC in regard to a legal entity that is
placed in the position of a consumer.92
Thus, the Superior Court of Justice (STJ) stated:
(. . .) there is an evolution in regard to understanding the contractual relationship
between a legal entity and a supplier whether in some cases, the legal entity who
purchased goods or services may also be taken as a consumer in the event that the company
reveals any vulnerability related to the supplier.
(. . .) the vulnerability is the core principle of the National Policy of Consumer
relationships prescribed in Art 4 of the CDC, and therefore the judgement is in line with
the Consumer Law.93
The proof of the legal entity’s vulnerability is not always prima facie. This is
because companies mix goods or services between the activities of the expertise area
with activities of their own need of private consumption. Most cases are about small
businesses with limited capacity to store energy and are dependent on public services
such as electricity, water or gas. The Superior Court of Justice has considered legal
88
TJSP Ap.0451170-97.2010.8.26.0000/SP, j.2012, see vote divergent p. 2. The decision cited
Marques, Claudia Lima: ‘There are cases in which small companies use goods or services in the
production line. Hence, they are not used or at least mixed with service area, but not in the expertise
area of the company. If the vulnerability is proofed it is feasible to conclude for the final destination
of the product or service acquired, and the CDC will apply.’
89
90
The intermediary, representative or distributor.
91
The manufacturer or the service provider.
92
STJ REsp 1.195.642/RJ, j.2012, (5).
93
STJ REsp 1.195.642/RJ, j.2012.
2.1 Consumer Law 27
entities as consumers if they prove vulnerability. In this situation, they may be a

consumer according to Article 29 of the CDC, as for example a hotel that purchases
gas.94
This turns out to be milestones in B2B and B2C contracts, which have provisions,
respectively, under the Civil Code and the Consumer Defence Code. Whilst the Civil
Code regulates contracts performed by business to business (B2B)95 or by consumer
to consumer (C2C), the Consumer Defence Code regulates contracts performed only
by business to consumer (B2C). That is to say, if goods or services acquired by the
legal entity do not belong to the expertise area of the company because they are used
for their own need as a final addressee (even if the purposes are mixed), the company
can be considered a consumer.96
In other words, there is a presumption that a natural person must always be a
consumer and therefore vulnerable when the other party is a supplier. But on the
contrary, there is no presumption of vulnerability in the case of legal entities. The
legal entity must prove its vulnerability to be benefitted by consumer law.97
Recently, a decision of the TJSP deemed that a legal entity had to receive back the
price paid for air tickets since the tickets were not used. The air company changed
the tickets to an MCO (miscellaneous charges order) but avoided paying the money
back. Though the air company won the case at first instance arguing to apply the
Brazilian Code of Aeronautics,98 which prescribes a deadline of 3 years to use air
tickets, the Court of Appeal reversed the judgment based on the vulnerability of the
legal entity in the face of the air company. The court ruled that the tickets acquired by
a legal entity were addressed to individuals, the entity’s employees. In addition, the
Consumer Defence Code should have been applied and not the Brazilian Code of
Aeronautics. Therefore, consumer law ought to be applied when the court identifies
the vulnerability of the legal entity, which acquired the ticket.99
Whilst vulnerability is permanent or a long-term state, it can also be a momen-
tary state in the case of an individual or group of individuals. Vulnerability is based
on the continued weakness of the means the consumer achieves his or her rights or
otherwise enjoys equal opportunities. Hence, vulnerability unbalances the consumer
relationship. It is also separately or simultaneously a circumstance, a characteris-
tic or a temporary state of the weaker party.
The consumer-driven approach to vulnerability might arise from several factors
on how to make the consumer vulnerable. An indicative and non-exhaustive list of
94
95
B2B Contracts are also covered by the Commercial Code.
96
STJ REsp 1.195.642/RJ, j.2012: This case is an example that involved a dealership car which
claimed compensation for damage caused by defects in their phone lines. Because of the vast
amount of investments in advertising, those investments became worthless given the inability to
answer calls from potential customers. The use of the service of phone lines may be accounted as
mixed with the main activity of selling cars to achieve the final result of it.
97
98
Act 7.565, 1986, Art 228.
99
TJSP Ap.0022927-43.2006.8.26.0068/SP, j.2013, p. 5.
these factors is as follows: (1) technicality of contracts, (2) complexity and extension
of contracts, (3) generalities of contracts, (4) the size of the letters (typos) of the
contract, (5) the exclusion terms of the offer, (6) the terms referring to documents
that were not given to the supplier and (7) the use of indefinite and vague terms and
concepts.100
Another important point is that the Civil Code prescribes general principles of
good faith addressed to the relationships between equal parties and/or equal profes-
sional experts. On the contrary, under the Consumer Defence Code, there is a
presumption that the contractual relationship is always unequal, and therefore
special protection is required to reach equality.
2.1.3.2 Vulnerable Person and Hypervulnerable Person
The notion of vulnerable consumer as a vulnerable person stems from the principle
of vulnerability prescribed by the CDC. The law did not provide a regulatory
framework for vulnerability based on a defined legal concept, but recent court
findings101 and authors102 use the term vulnerability in liaison with the notion of
vulnerable consumer.
This is because the sophistication of the concept of vulnerability goes beyond the
essentials of the principle set forth by Article 4 (I) of the CDC, which according to
the authors applies to everyone who consumes—the rich, poor, educated,
non-educated, credulous or wise.103 Since there are consumers who are more
vulnerable than others, Brazilian law, courts and authors do not ignore other varieties
of vulnerabilities. Those have different wording, as for instance special104 or
severe105 vulnerability or hypervulnerability,106 but the meaning applies to con-
sumers who are more vulnerable than others. Nowadays, the Superior Court of
Justice has adopted the term ‘hypervulnerability’, referring to those individuals or
groups of individuals.107 The court indeed refers to those groups as a category of
‘consumer hypervulnerables’.108
100
Benjamin et al. (2010), pp. 87, 88.
101
TJSP Ap.0451170-97.2010.8.26.0000/SP, j.2012, see divergent vote p. 2.
102
Marques (2011), pp. 17, 652.
103
Benjamin et al. (2010), p. 259. See comments on the previous title: 1.3.1. Consumer vulnera-
bility: ‘the vulnerability is classified in technical, legal, factual and informational.’
104
Marques (2011), p. 369.
105
Marques and Miragem (2012), pp. 11, 147, 187.
106
107
108
STJ REsp 586.316/MG, j.2007, pp. 1, 3, 13, 22, 23, 25.
2.1 Consumer Law 29
Whilst the Consumer Defence Code protects all consumers as a whole in view of
their presumed vulnerability,109 sectoral laws define rights of persons with
hypervulnerability, adding particular rights to those individuals and groups of
persons. They are (1) the children and youth,110 disabled111 and elderly112 and
(2) slightly larger groups such as persons with reduced mobility.113 In this context,
it is feasible to assert that the term hypervulnerability, developed by courts, is now
embedded in national statutes in alignment with the CDC.
For instance, children are most vulnerable as they are often unlikely to understand
the implications of the information about goods and services provided in the market.
They are unaware of the dangers they face, as well as are more susceptible to the
influence of new methods of marketing. The youth are more likely to believe
marketing and advertising information without questioning it. Besides the specific
statute dealing with children and youth, the significant provision protecting children
against misleading and abusive publicity is found in the CDC.114 Any publicity that
takes advantage of the weaknesses of the children’s judgment and their behaviour is
conceived as an abusive practice. The Code also has a non-exhaustive list of abusive
practices (unfair practices),115 which is assessed by courts jointly with Act 8.884/94
on prevention and repression of offences against the economy. Thus, children are
certainly hypervulnerables.
To children, recognising vulnerability is easier (because of their nature of having
cognitive limitation), but vulnerability related to disabled persons has different
grounds. They are connected with the barriers they face and the particular disability
they have. Besides the statute of disabled person and its regulation, Decree 5.296/04,
Brazil meets the requirements of the Convention on the Rights of Persons with
Disabilities,116 adopted by the Federal Constitution117 and recognised by courts with
a constitutional and supra-legislative value.118
The law separates the disabilities into the following categories: (a) physical
disability (full or partial), (b) hearing disability (bilateral loss, full or partial),
(c) visual impairment, (d) mental retardation and (e) multiple disabilities (association
109
Note: The principle of vulnerability of the CDC is presumed to the consumer while a natural
person, but has to be proved by legal entities if they pursue the protection of the CDC.
110
Act 8.069, 1990, Statute of children and teenager (Estatuto da Criança e do Adolescente).
111
Act 7.853, 1989, Statute of disabled person (Estatuto do Portador de Deficiência). Note: the
statute is currently under revision by the parliament.
112
Act 10.741, 2003, Statute of elderly (Estatuto do Idoso).
113
Decree 5.296, 2004, Art 5 (II) § 2, persons over 60 years old, pregnant, lactating women, and
persons with an infant in their arms.
114
Act 8.078, 1990, Art 37, § 2.
115
Idem, Art 39.
116
The Convention was adopted in 2006 and entered into force on May 3rd, of 2008. So far,
145 States parties have signed the treaty. Brazil signed it on 30/03/2007 and ratified the Convention
and the Protocol on August 1st, of 2008.
117
Decree 6.949, 2009, Regulation of the Convention on the Rights of Persons with Disabilities.
118
TJSP Ap.0014757-59.2009.8.26.0268/SP, j.2014.
of two or more disabilities).119 The disabled person has the same rights as all other
citizens to freedom of choice and to non-discrimination in the consumer market.
However, although there is a higher risk of consumer detriment affecting a person
with disability, it does not mean that the risk actually has happened or will happen.
Nevertheless, hypervulnerability is widely presumed in this group as a category of
hypervulnerables.120
A typical case lacking the duty of care to passengers with disabilities involved an
air carrier. A person who had disability requested for the reservation of an accessible
seat at the time she bought the ticket. She received information that the seat should
be requested during the check-in time. However, at check-in time, the air company
informed her that other passengers already occupied all accessible seats. The pas-
senger finally found a seat only because of another passenger’s charitable attitude.
The judgment took into account that the company failed to prove that the service was
not defective. It also failed to prove an exclusion of liability on account of fault
attributable to the consumer or to a third party. As a result, the principle of
vulnerability in the consumer relationship shall apply. In a row, the inversion of
the burden of proof of Article 6 (VIII) CDC also applies in favour of the consumer
that is the weaker party. Moreover, assistance and charity provided by other passen-
gers should not exclude the liability of the company to provide assistance and
accessible seats to passengers in need.121
Although this case refers to lack of proof, it draws the line of detriment suffered
by a disabled person, whereas the wording ‘charity’ intensifies the feeling that there
is no right but a charitable view. It is unlikely that a regular consumer, whose
vulnerability is more general by principle, would experience the same level of
detriment.
Because of the hypervulnerability, there is a grant of transportation free of charge
for those poor who are disabled persons. The condition must be proved under local
rules.122 The Court (TJSP) has reinforced the universal characteristic of disabled
person, who must not be discriminated by the type of disability, meaning that not
only a person with physical disability shall be contemplated by the right of free of
charge in local transportation but also all categories of disability.123 The disabled
person, like other citizens, has the same right to free movement, freedom of choice
and non-discrimination.
119
Decree 5.296, 2004, Art 5 § 1, (I).
120
STJ REsp 931.513/RS, j.2009, p. 4.
121
TJSP Ap.0035373-72.2012.8.26.0002/SP, j.2013, pp. 4, 6.
122
The municipality has the jurisdiction to legislate about free of charge transportation to disable
persons.
123
TJSP Ap.0011086-52.2011.8.26.0302/SP, j.2014. Note: According to Art 5 § 1 of the Decree
5.296/2004 the disabled person is one who has the limitation or inability to perform an activity and
therefore falls in the following categories: (a) physical disability (full or partially), (b) hearing
disability (bilateral loss, full or partially), (c) visual impairment, (d) mental retardation and
(e) multiple disabilities—association of two or more disabilities.
2.1 Consumer Law 31
Although the municipality has the jurisdiction to legislate on free-of-charge

transportation for disabled persons, it does not mean that local rules always have
friendly requirements. It is the case of a city located in Sao Paulo state, which
imposed a list of conditions restricting the free-of-charge transportation granted to
disabled persons. In this case, the court emphasised that the federal legislation124 that
grants the priority of accessibility to everyone with economic disadvantage shall
prevail.125
But the air transportation sector has a different approach. Air companies are not
obliged to provide air service free of charge to disabled persons with economic
disadvantage. The provisions of Act 8.899/94 detailing the free-of-charge transpor-
tation to disabled persons in collective interstate carriage (lei do passe livre) do not
set forth such a situation for air transportation.126 Nevertheless, administrative rules
obliging airlines to charge only 20% or less for the traveller’s companion’s ticket, if
the traveller with disability requires an assistant exist. On the other hand, the
disabled traveller, in respect of carriage of equipment or essential assistive stuff
for his own need, receives a discount of 80% in case of overweight luggage.127
For the elderly, there is a tendency to assume that many of them who have high
incomes are relatively unaffected by consumer detriment; on the contrary, the actual
number of elderly persons who have low incomes, being a great proportion of the
population, are truly vulnerable. Nevertheless, this is a simplistic view. The assump-
tion of vulnerability is based not solely on personal incomes but also on the
circumstances and situations that exploit the vulnerability and intimidate or constrain
the elderly when such a situation of detriment occurs. The elderly suffers greater
psychological detriment than other consumers do. Public agencies, public companies
and financial entities (banks) are obliged to provide priority services by means of
individualised services that ensure differential treatment and immediate care to the
elderly.128
Thus, a recent decision of the STJ determined that the bus must not require an
extra identification card (like a document with photo) to make sure that the elderly
can use the transportation free of charge. Only one personal identification card is
enough. In addition, the companies ought to reserve 10% of the seats to the
elderly.129 Any person over 65 years old is eligible to exercise the right of transpor-
tation on local or regional public transport free of charge if he or she shows any
124
Act 7.853, 1989 and its regulation the Decree 3.289/99, the Act 10.048, 2000 and Act 10.098,
2000 regulated by Decree 5.296/04. The Act 8.899, 1994 refers to gratuity in interstate public
transportation system.
125
TJSP Ap.0029172-84.2009.8.26.0482/SP, j.2014.
126
STJ REsp 677.872/PR, j.2005.
127
ANAC Resolution 280, 2013.
128
Act 10.048, 2000.
129
STJ AgRg REsp 1.162.156/RJ, j.2013.
personal identification that proves his/her age.130 Local laws shall determine whether
persons between the age of 60 and 65 may exercise the same rights as those of
persons aged over 65.131
Elderly may spend more time at home that leads to potential role conflicts and
psychological tension. It is necessary to alleviate such tension constituting a threat of
depression and consequently translating into elderly detriment. Therefore, the law
grants at least 50% discount on tickets of any artistic, cultural, sport and leisure
events.132
The second category of hypervulnerability is significantly greater. It includes
larger groups with reduced mobility. The Regulation on Accessibility of Disabled
Person and Persons with Reduced Mobility (PRM) sets forth that a person with
reduced mobility is a person without physical disability but has difficulties to move,
permanently or temporarily, because of reasons affecting his/her flexibility, coordi-
nation and perception. They are persons over 60 years old, pregnant women,
lactating women and persons with an infant in their arms.133
There is also a wider concept of PRM established by the Brazilian National
Standards Organization,134 which produces technical infra-rules named
‘normalização’ to assist the executive power (the administration) filling the gaps in
legislation. It prescribes that a person with reduced mobility is one who temporarily
or permanently has a limited capacity to use and to interact with the environment.
This category of persons is, inter alia, the disabled persons, the elderly, obese
individuals and pregnant women.135 These are anyone who has particular difficulty
when entering in a consumer relationship.
The Tourism National Statute136 refers to groups of individuals such as children,
the disabled and the elderly as special segments of the internal market.
The Ministry of Tourism conducted a study on the profile of tourists, targeting
persons with disabilities and reduced mobility, to investigate their needs for the
purpose of including them in further plans and public policies related to travel and
tourism.137
Neither ‘vulnerable person’ nor ‘hypervulnerability’ has a clear single definition
by law. In light of the doctrine and court ruling, the terms vulnerability and
‘hypervulnerability’ are approached, though with a wide notion. Whilst vulnerability
is considered a universal aspect pertaining to all consumers, ‘hypervulnerability’ is
a stable characteristic of a person or a group of persons but hardly ever applies to all
consumers.
130
Act 10.741, 2003 Art 39 § 1 § 2.
131
Idem, Art 39 § 3.
132
Idem, Art 23.
133
Decree 5.296, 2004, Art 5 § 1 (II) § 2.
134
Associação Brasileira de Normas Técnicas.
135
ABNT NBR 9050:2004.
136
Act 11.771, 2008, Art 6 (V).
137
MTUR-Ministerio do Turismo. Turismo acessivel (2013).
2.1 Consumer Law 33
Furthermore, closest to the concept of ‘hypervulnerability’ is the concept of

hipossuficiencia, which basically discloses a disadvantage when a person is engaged
in lawsuit. Besides vulnerability, hipossuficiencia involves the procedural rights of
the party to simplify his/her defense through inversion of the burden of proof. But
the party must show the disadvantage, and the judge must analyse the feasibility of
providing legal benefit.138 In this regard, the Consumer Defence Code sets forth:
Art 6: The following are basic consumers’ rights:(. . .)
VIII - the facilitation of consumer defence when there is litigation, including the
inversion of burden of proof in favor of the consumer in a civil action when, by the discretion
of the judge, to decide that the claim holds truth or when the consumer is “hipossuficiente”
(disadvantaged) according to ordinary rules of experiences.
It is not that the term is not prescribed by law but that the term is not defined
accordingly. What are ‘ordinary rules of experiences’? The term is indefinite.
Although the doctrine and courts attempt to use some criteria to identify the term
hipossuficiente as a characteristic of a person, the term varies in the range of content
and in the extent to which it is applied.
For example, whilst the Superior Court of Justice139 recognises hipossuficiencia
as a procedural notion, which allows access to justice according to the statute that
grants free legal aid to poor people,140 legal academics emphasise that the acknowl-
edgement of hipossuficiencia depends on two aspects: (1) the judge’s discretion,
which allows him to identify whether or not the consumer is able to sustain his or her
arguments with reasonable proof, and (2) if the term is too vague and indefinite that
the meaning shall be built according to an objective criterion, without giving the
judge the option of choosing the rules. The judge must analyse the facts, pondering
on the circumstances of a particular case appropriately.141
According to the Federal Court, hipossuficiencia may result from either an
economic or cultural source. Economic is verified on those with low incomes.
They have difficulties in paying their bills and belong to the low level of the social
staircase. The low level of income may result from the lack of the minimum
conditions necessary to enable a person to exercise his/her rights appropriately.
Cultural is connected with illiteracy. It is to say, if a person is iliterate with low
level of education or no education at all and he/she is unable to understand and
reflect upon the consumer relationship because of below-average capabilities. How-
ever, such a type of hipossuficiencia emerges when there is a lack of culture in such a
high degree that the person is drastically diminished in the face of the supplier.
Illiteracy in a way blocks the person’s understanding of his/her rights in the
consumer relationship.142
138
Theodoro Junior (2011), p. 165.
139
STJ REsp 200.390/SP, j.2000.
140
Act 1.060, 1950, Lei de Assistência Judiciária Gratuita (statute of free legal aid).
141
142
TRF 3a. Região Ac.200661260032855, j.2009.
In fact, the principle of vulnerability is abstract. The vulnerability of the con-

sumer is directly or indirectly related to the contract and the protection on the
consumer takes into account the contract.143 The consumer relationship is not solely
based on the natural person but also based on the vulnerable party, the individual as a
physical person or a legal entity as parties to the contract.144
2.1.3.3 Consumer’s Rights, Traveller’s Rights
The Consumer Defence Code (CDC) embedded key consumer rights as provided in
its Article 6 and Article 4. Everyone involved in a consumer relationship will have
the same rights granted by the Code. These persons may be the traveller, the disabled
person, the elderly and even those not specifically covered by a special or sectoral
statute. The provisions have an indicative and non-exhaustive list of Brazilian
consumer law principles, as for example the following:
1. life, health and safety: protection of consumer's life, health and safety against any
risks arising from any practices on account of the supply of goods and services
considered harmful or dangerous;
2. information and freedom of choice: education and information about the adequate
level of consumption of goods and services, ensuring freedom of choice and
parties equality in contractual procedure;
3. information: appropriate and clear information on different goods and services,
with correct details in regard to quantity, characteristics, composition, quality, tax
and price, as well as the risks involved;
4. transparency and good faith: protection against misleading and abusive publicity,
unfair commercial methods that are coercive or unlawful, as well as practices and
abusive clauses that are imposed as part of the supply of goods or services;
5. contractual protection: the modification of contractual clauses that impose dis-
proportionate instalments or its revision based on supervening facts that make the
contractual clauses exceedingly expensive;
6. prevention and reparation of person injury: effective prevention and reparation
of material and immaterial damages, whether the damage is individual, collective
or diffused;
7. access to justice: access to justice and to administrative entities for the prevention
and reparation of material and immaterial damages, whether the damage is
143
Marques (2011), p. 12.
144
STJ REsp 476.428/SC, j.2005.
2.1 Consumer Law 35
individual, collective or diffused, as well as ensuring judicial, administrative and

technical protection to those in need;
8. facilitation on litigation: facilitation of consumer defence when there is a litiga-
tion, including the inversion of the burden of proof in favour of the consumer in a
civil action, when, upon the discretion of the judge, the claim holds true or when
the consumer is hipossuficiente (disadvantaged) according to ordinary norms;
9. appropriated and effective public service: provide the consumer with appropriate
and effective public services, in general.
The rights herein mentioned are not limited to Articles 6 and 4 because Article
7 emphasises that the rights set forth in the CDC do not exclude any other rights that
may be created as a result of international treaties or conventions ratified by Brazil.
In addition, they not exclude rights established under internal regulations set forth by
administrative authorities, or other rights that stem from the general principles of
law, analogy, custom and equity.
There are meaningful remedies found on provisions granted by the Consumer
Defence Code under the consumer contractual protection scheme. The examples of
remedies granted to consumers in general that also apply to travellers are as follow:
a) Consumer’s right of withdrawal or cancellation: it is granted for a period of
seven days from purchase, without any justification, whenever the goods or
services were acquired off premises, especially by phone or doorstep selling
(Article 49);
b) Consumer’s restitutionary right to recover the money: this refers to the money
that was paid under the contract, which was cancelled within the withdrawal
period (Article 49 sole paragraph);
c) Consumer’s right of relief from excessive penalty: the clause set up in the
contracts of credit or financing related to no payment of the obligation and/or
its instalments shall not go over 2% of the total amount of each instalment
(Article 52 § 1).
d) Consumer’s right to pay the obligation prior to the final date agreed upon in
the contract. The payment may be either total or partial. The interest rate and
extra costs shall be proportionally reduced to the date of the payment (Article
52 § 2).
e) Consumer’s right to be informed in advance about the contract’s content: the
traveller has the right to be informed of the content of the contract in advance
and in a plain and clear manner and in a language that he/she understands. The
contract shall not lack understanding of its meaning and scope. (Article 46).
f) Consumer’s right to file a claim in the court of his/her domicile (Article
101 (I) CDC combined with Article 94 of the CPC).
The Code asserts that the clauses of the contract have to be interpreted in a way
that is most favourable to the consumer (Article 47). This is because the consumer is
a vulnerable party (the weaker party). This is a fiction of law to eliminate inequality
and promote equality.
In addition, documents, declarations, reports, pre-contractual information,

receipts and any written documentation provided by the supplier to the consumer
traveller can be used to enforce the duty of care. Therefore, the respective liability of
the supplier applies (Article 48). That is to say, the supplier is liable under every
document issued upon the performance of the contract.
2.1.4 Traveller
Quite apart from the fact that consumer protection has developed, there were
surprisingly few provisions tackling the word ‘traveller’ and none specifically
about ‘traveller’ or even ‘tourist’ protection in Brazil. Nevertheless, the focus here
is the traveller.
As already said, despite the increasing activity in the travel and tourism industry,
the term traveller is still doubtful from a legal perspective. This is because like the
term consumer, the term traveller is a centrepiece of an ongoing debate on the legal
nature of such person. What is a consumer? What is a traveller? The complex
relation between consumer and traveller has not been discussed satisfactorily.
This debate has not reached a conclusion over the years inasmuch as being a
citizen is one of the bases of providing an individual with certain rights (i.e., citizen
rights). Thus, a subsequent question has arisen about the passenger, traveller,
business traveller, user and of course consumer since they are no longer strictly
considered individual persons, in terms of natural persons under the law, but they are
in fact persons created by law.
Although all travellers are consumers,145 not all consumers are travellers. There is
not any possibility that a legal entity could be a traveller. However, under Brazilian
law, a legal entity might be a consumer if vulnerable.146 In addition, there are
business travellers taking trips on behalf of a legal entity.
Yet, despite all these legal questions, there is the ‘conceptual key of movement’.
One of the fundamental freedoms is the free movement of persons. The Brazilian
Federal Constitution sets forth the free movement of persons. The traveller as a
person moves through space beginning at his or her place of residence and ending at
145
Note: Although barely possible, it is difficult to think that a traveller nowadays may travel by
means of no-cost. It is possible to save money in some parts of the travel, such as having
accommodation at the friend’s house, and hitchhike for one’s own carriage, which may providing
free. However, in practical terms there will be always the need to buy a sandwich and/or hot coffee
in the middle of the trip or to pay for a local bus ticket to complete the journey. In addition, in
contrast to Brazil, in some European countries it is not possible to use public or private toilets
without a small payment.
146
Act 8.078, 1990, Art 2: A consumer is any physical person or legal entity who acquires or uses
goods or service as a final addressee. About vulnerability of the legal entity, see Sect. 2.1.3.1.
2.1 Consumer Law 37
his/her place of destination. Even a business traveller, traveling from one destination
to another, has a particular place of residence. Therefore, to determine the ‘traveller’
is to discern aspects of ‘movement’. There is no doubt that the traveller needs
movement. ‘Travel and tourism’ is the manifestation of the freedom of movement
where the traveller is the centrepiece.
Actually, all things are in movement and nothing stays put.147 In this context, the
concept of ‘movement’ is a fundamental right under the Brazilian Federal
Constitution:
Art 5, item XV – it is free in time of peace the movement (of persons) within the national
territory, and any person may, under the terms of the law, enter it, remain therein or leave
it with her/his assets.
Frequently, the ‘consumer traveller’ who moves within the national territory or
abroad usually travels independently, that is, he or she arranges for his/her own flight
(bus or ferry), accommodation or car rental. But the traveller may also prefer to buy a
prearranged travel package that includes a combination of travel services bundled in
advance by a travel agent, which consists of at least two of the following services:
(1) carriage of passengers, (2) accommodation and (3) other tourist services.
There is not any particular law that expressly defines the term traveller. The
traveller as a legal person demands more accurate legal framework in order to be
distinguished from the regular consumer.
Travellers travel all over the world. Hence, an accurate legal terminology
concerning traveller and travel will have greater significance. The movement of
travellers, at the same time that it promotes economic growth, increases consumer
problems. Consequently, the paradox effect of ‘travel and tourism’ has become the
focus of contemporary controversy.
In the context of the Brazilian legislation, the word ‘traveller’ does not play a role
as a main legal terminology. See Table 2.1 below.
Between 1912 and 2008, there were few provisions particularly tackling the word
traveller. For example, in 1940, Federal Decree 2.440/40 required that suppliers and
travel agencies should be licensed to set up a local company that offers paid
assistance to travellers. The term traveller appeared again in 1986 in the Brazilian
Code of Aeronautics, where there is a contract for domestic carriage by air. Never-
theless, the word ‘traveller’ was always out of the context of its legal definition.
In 2002, the Brazilian Civil Code used the word traveller only in regard to
contracts of service of handled luggage (Articles 649 and 650). Recently, the word
traveller was included in the Federal Tourism Statute, enacted in 2011, in its Article
27 (VIII) and (IX). However, neither the regulation nor the Tourism Statute has
developed a clear legal definition for traveller in terms of contract law. Therefore, the
traveller is implicitly a regular consumer under Brazilian law.
147
Heraclitus. A Greek philosopher (c.535–475 b.c.e.).
Table 2.1 Legislation

Year Legal act Reference Provision Validity
1912 Federal Decree Railroad’s Art 17. The railroads are liable for Not
2.681 liability disasters that succeed in their lines to repealed
travellers, resulting in death,
wounding or bodily injury.
Art 25. The railroads are also liable
under the previous article, if the
traveller proves that s/he could not
make the trip by having the traffic
being suspended or stopped, or was
not any train set up for the time pur-
chased, or could not find a place in the
class for which s/he has purchased the
ticket
1940 Federal Decree Activities of Art 1. The companies which offer Not
2.440 suppliers and paid assistance to travellers are dis- repealed
travel agencies tributed into three categories: (. . .)
1958 Federal Decree Customs Art 1. Not dependent of license as Repealed
43.028 clearance well as proof of hedging: I—the lug- by Decree
gage of travellers that does not com- of 5.09.91
prise furniture and vehicles, but only
clothes and personal accessories up to
the amount of 100 (one hundred)
thousand cruzeiros, calculated
according to the official exchange rate
1984 Federal Decree Standard for Art 2. The boarding card, or input and Repealed
89.292 boarding card output card, will be printed in by Decree
two-ways interleaved with carbon 94.318/87
paper, according to the specifications
of the standard mentioned in the pre-
vious article, and should be completed
by the traveller or the carrier and
delivered to the Federal Police in two
sheets
1986 Brazilian Code Carrier’s Art 281. Every carrier is required to In force
of Aeronautics liability have insurance to grant any damages
Act 7.565 in further risks as follows: I—For
damages arising under this Title, with
the limits of liability set out therein
(Articles 257, 260, 262, 269 and 277)
or contracted (§ 1 of Art 257 and
paragraph of Art 262); II—the crew
and travellers travelling for free
which under these effects, are equiv-
alent to passengers (Art 256, § 2)
2002 Civil Code Act Contracts of Art 649. To the deposits referred to in In force
10.406 service of han- the preceding article are equated to the
dled luggage baggage of travellers or guests in
hostels where they are hosted. Sole
paragraph. The hosts will respond as
(continued)
2.2 The Role of the Travel and Tourism Sector 39
Table 2.1 (continued)

Year Legal act Reference Provision Validity
custodians, as well as for thefts and
robberies carried out by persons on
their behalf employed or admitted in
their company.
Art 650. Ceases, in the case of the
preceding Article, the responsibility
of the host, if they prove that the
harmful facts suffered by travellers or
guests could not have been avoided
2008 Tourism Stat- Tourism Art 27. Tourism agency is the legal In force
ute Act 11.771 agency person that develops the economic
activity of intermediation between
suppliers and consumers of tourist
services or provides those services
directly. (. . .) § 3. The intermediation
activities conducted by tourism agen-
cies comprise the offer, the booking
and sale to consumers in one or more
of the following tourist services pro-
vided by third parties: (. . .)
VIII—sale or paid intermediation of
insurance linked to trips, tours and
excursions as well as cards of travel-
ler’s assistance;
IX—sale of books, magazines and
other articles addressed to travellers,
and (. . .)
Source: Author’s compilation
2.2 The Role of the Travel and Tourism Sector
Brazil is the largest country in South America with 8,286,488 km2 in area, followed
by Argentina with 2,780,400 km2. It occupies the fifth place in world rankings
behind Russia (17,098,242 km2), Canada (9,984,670 km2), China (9,706,961 km2)
and the United States (9,629,091 km2). In 2018, with a population estimated at
209,002,368,148 Brazil is a mass market in the continent and continues to expand in
view of its capacity to grasp business opportunities. Sao Paulo is the country’s
largest state by population with 45,394,316 people living there; followed by Minas
Gerais, 21,222,390; and Rio de Janeiro, with 16,790,875 inhabitants. According to
IBGE, in 2017, only the city of Sao Paulo, located in the state of Sao Paulo,
accounted for 12,106,920 inhabitants.149 The country is composed of 26 member
states of the Federal Union, plus the capital of Brasilia.
148
https://www.ibge.gov.br/apps/populacao/projecao/index.html website visited on 14.05.2018.
149
https://cidades.ibge.gov.br/brasil/sp/sao-paulo/panorama website visited on 14.05.2018.
Its ultimate goal is to improve the standard of living and social well-being of its
people through industrialisation. However, for the time being, the standard of living
has risen for substantial segments of the population but not for all.
Even so, over the last years, the country strove to ensure income distribution as
broadly as possible through public policies, and most importantly, its economy
achieved reasonable strength to allow it to compete on its own basis as an exporter
of manufactured goods. However, economic forces from outside still affect the
development of the internal economy. Outside forces may cause imbalances,
which may be another kind of vulnerability. For such economic vulnerability, no
deep examination will be made herein.
The international transboundary movement in travel and tourism has also affected
the country in several ways. This movement ensured, along with other countries, the
need to implement some measures and regulatory reform. The combination of such
measures included inflation under control, reduction in the interest rate and
rebalancing the account of payments.150
Regarding criminality in the main capitals, data published by IBGE show a
decrease of 19.8% in the rate of homicides between 1997 and 2007 related to the
number of crimes per 100,000 inhabitants. The analysis of those statistics must have
a word of caution as there are several factors that may affect the outcome depending
upon the circumstances. Official statistics of crimes, for example, take into account a
set of standard terms of validity and reliability provided by statutes.151 This means
that depending on the context, whether the level of official statistics on crimes
increases or not, it is not always a negative factor as it may reflect changes in police
practices (more or less intense) or changes in legislative matters.152
The report issued in January 2009 by the International Monetary Fund (IMF) on
the World Economic Outlook (WEO) stressed that the recovery of the global
economy was occurring more rapidly than expected, however in an unequal way.
It recommended that whilst the situation had not been stabilised, governments
should keep using measures to stimulate the economy. At least in percentage
terms, the economic growth observed in emerging countries and in those developing
countries had increased in recent years rather than in advanced economies. Further-
more, the report recommended the need for countries to regulate strongly the
banking system in order to prevent another financial meltdown.153
Nevertheless, the World Economic Outlook (WEO) 2015 revealed a sensitive
situation as the global growth remains moderate. In many emerging market and
developing economies, macroeconomic policy space to support growth remains
limited. In economies with oil subsidies, the lower prices may provide some fiscal
space to strengthen fiscal positions. Growth in emerging market is expected to pick
150
MTUR (2011/2014), p. 14.
151
In the State of Sao Paulo the Act 9.155/95 requires that the Department of Public Safety shall
disclose crime rates.
152
Rodrigues dos Santos (2009), pp. 219–220.
153
MTUR (2011/2014), p. 12.
Region/Year 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
World 3.4 3.4 3.5 3.2
Advanced 1.4 1.8 2.4 1.7
USA 1.8 -0.3 -2.8 2.5 1.6 2.3 2.2 2.4 3.1 1.5
Euro zone 3.0 0.5 -4.5 2.0 1.6 -0.8 -0.5 0.9 1.5 1.8
Japan 2.2 -1.0 -5.5 4.7 -0.5 1.8 1.6 -0.1 1.0 0.9
Emerging 5.0 4.6 4.3 4.4
Brazil i 6.0 5.0 -0.2 7.6 3.9 1.8 2.5 0.1 -1.0 -3.5
Russia 8.5 5.2 -7.8 4.5 4.3 3.4 1.3 0.6 -3.8 -0.2
India 9.8 3.9 8.5 10.3 6.6 5.1 5.0 5.8 7.5 7.1
China 14.2 9.6 9.2 10.4 9.3 7.8 7.8 7.4 6.8 6.7
South Africa 5.4 3.2 -1.5 3.0 3.2 2.2 2.2 1.4 2.0 0.3
Latin America 2.9 1.3 0.9 -0.7
Fig. 2.1 World economic outlook, real GDP (%). Source: World Economic Outlook, April
2015–January 2018—IMF. Figures recompiled by the author
up in 2016, driving an increase in global growth to 3.8%, mostly reflecting some

pressures on activity in countries and regions with weak growth in 2015, such as
Russia, Brazil and the rest of Latin America.154
Following Fig. 2.1, Brazil’s economy was projected at 1.0 in 2015. Private
sector sentiment has remained stubbornly weak, reflecting the risk of near-term
electricity and water rationing, unaddressed competitiveness challenges and fall
out from the Petrobras investigation. The Brazilian authorities’ renewed commit-
ment is to rein the fiscal deficit and reduce inflation. It will help restore confidence in
Brazil’s macroeconomic policy framework, but it will further curb near-term
demand.155
Comparing the year 2007 and 2010, there has been an enhancement of the
percentage of the gross domestic product in Brazil. The country had 6.0 in 2007,
which improved to 7.6 in 2010. However, it has decreased noticeably in 2014, 2015
and 2016 (Figs. 2.2 and 2.3).
Tourism is part of the real GDP path. The turnover for tourism has gotten strong
attention from authorities over the years, and Brazilian official sources are now
publishing data on the sector.
In order to identify the activities related to tourism in the national account system
(SCN), the country has updated the CNAE (National Classification of Economic
Activities) to reflect the current reality of the economic activity of tourism. The
CNAE is a classification used to standardise the identification codes of the units of
the country’s production. The files and records of the government are updated in
154
IMF, International Monetary Fund (April 2015), Executive Summary, p. xv.
155
Idem, p. 57.
Fig. 2.2 World economic Region 2017

outlook, real GDP (%). World 3.7
Source: World Economic Advanced economies 2.3
Outlook, January 2018— USA 2.3
IMF. Figures recompiled by Euro area 2.4
the author Japan 1.8
Emerging economies 4.7
Brazil 1.1
Russia 1.8
India 6.7
China 6.8
South Africa 0.9
Latin America 1.3
Fig. 2.3 Projection: World Region 2018

economic outlook, real GDP World 3.9
(%). Source: World Advanced economies 2.3
Economic Outlook, January USA 2.7
2018—IMF. Figures Euro area 2.2
recompiled by the author Japan 1.2
Emerging economies 4.9
Brazil 1.9
Russia 1.7
India 7.4
China 6.6
South Africa 0.9
Latin America 2.6
light of the CNAE. Such a classification is used by the government, particularly in

the tax area.
According to the official study of IBGE, the updating processes took into account
the classification of tourism recommended by the UNWTO to specific economic
activities of the industry. The UNWTO developed the Uniform International Clas-
sification of Tourist Activities comprising the list of tourism characteristic activities
(tourism industries) and grouping by main categories according to ISIC (Interna-
tional Standard Industrial Classification) created by the United Nations.156
Over the last years, the outcome of the international turnover for tourism pointed
to the strengthening of the activity in the international market. According to the data
from Central Bank, in 2009, Brazil recorded a foreign exchange turnover of US$
5.30 billion. Although lower than the previous year (2008), the figure represents an
156
IBGE, Economia do Turismo (2012), p. 7.
Fig. 2.4 International 2010 5.809.505

arrival by air 2011 9,018,507
2012 9,368,195
9,467,994
Source: MTur in
http://www.dadosefatos.turismo.gov.br/dadosefatos/home.html
Website visited on 30.08.2013 and 02.04.2015
2015 10.538.012
2016 10.172.972
2017 10.624.962
Source: MTur in
http://www.dadosefatos.turismo.gov.br/dadosefatos/home.html
Website visited on 1.03.2018
increase of 165%, compared to 2002 (US$ 2 billion). In the same period, the growth
of world tourism turnover was 66%.157
The international turnover for tourism is directly related to inbound tourism in the
country, as well as how long international tourists stay and the expenditures they
made in the country. Whilst the inbound tourism increased 40% between 2003 and
2005, after that it has a tendency for stabilisation around five million. It is important
to bear in mind the following points: the massive impact of the bankruptcy of a lead
national airline that operated that time (Varig), the pandemic influenza A (H1N1)
and the international financial crisis. Though the Federal Government has adopted
internal measures to mitigate such events, external markets that send tourists to
Brazil were also affected by the financial crisis. Taking into account 2002 as
reference, there was an increase of 33.6% in 2008. In the same period, the growth
of international tourism worldwide was around 31.0%.158
The country registered about 6.48 million passengers that landed from interna-
tional flights in 2009. These numbers have been stabilised since 2004. In the period
from 2002 to 2009, the growth was 39.95%. In 2009, there was a slight decrease, less
than 1%, compared with 2008. It is relevant to point out that amongst these arrivals,
there are also Brazilians returning from abroad.159
Compared to 2010, in 2013 the international arrivals by air have grown. The
numbers of arrivals incresed from 5,809,505 in 2010 to 9,467,994 in 2013, the
growth represents 3,658,489 arrivals, which accounted for 37% in that period
(Fig. 2.4).
Regarding the most visited cities in Brazil by foreign tourists, Rio de Janeiro
remains in 1st position, whilst São Paulo, the main gateway of the country, is in the
fourth position. Foz do Iguaçu and Florianópolis occupy prominent positions in the
ranking of leisure tourism destinations, respectively second and third. Those desti-
nations are followed by Búzios, Camboriú, Bombinhas, Parati and Angra dos Reis.
Salvador is the exception in this group.160
157
MTUR (2011/2014), p. 42.
158
MTUR (2011/2014), p. 43.
159
MTUR (2011/2014), p. 44.
160
Idem, p. 246.
Table 2.2 Travel and tourism agencies

Unidades da Federação/ Agências/ Unidades da Federação/ Agências/
Federative Units Agencies Federative Units Agencies
Brasil/Brazil 10,792 Alagoas 103
Rondônia 93 Sergipe 85
Acre 40 Bahia 515
Amazonas 153 Minas Gerais 1047
Roraima 34 Espírito Santo 130
Pará 169 Rio de Janeiro 1522
Amapá 42 São Paulo 2404
Tocantins 35 Paraná 899
Maranhão 167 Santa Catarina 552
Piauí 66 Rio Grande do Sul 920
Ceará 279 Mato Grosso do Sul 220
Rio Grande do Norte 146 Mato Grosso 175
Paraíba 153 Goiás 264
Pernambuco 268 Distrito Federal/Federal 311
District
Source: IBGE—Brazil in figures v.20 2012, p. 256
Compared to 2009, in 2010 Foz do Iguaçu and Florianópolis received more

foreign tourists than other destinations.
In the Brazilian travel industry, there is a predominant focus on international
outbound and domestic tourism. This explains its actual geographic distribution
(Table 2.2): nearly 40% of travel agencies are located in the main consumer markets
of the country: São Paulo (22.3%), Rio de Janeiro (14.1%) and Minas Gerais
(9.7%).161
One factor that may positively influence the international market of tourism in
Brazil is the international business/tourist events. Over the last years, compared with
the largest recipients of business/tourist events in the world, the country has risen in
the ranking of the International Congress and Convention Association (ICCA).
Every year, cities are included in the official list of host cities so that the city host
can provide a sustainable environment to the events, indicating a variety in the
supply of qualified destinations for business/tourism events.
Brazil held the 2014 World Cup and the 2016 Olympic Games, as well as other
related events, wich placed the country in a prominent international view enhancing
opportunities for tourism.162
Compared to 2012, in 2014 the country has slipped down from the 7th to the 10th
position in the ranking of number of international events (Fig. 2.5).
161
Idem, pp. 246–247.
162
MTUR (2011/2014), p. 46.
Ranking 2010 Nº 2011 Nº 2012 Nº 2014 Nº

1st U.S.A. 623 U.S.A. 759 U.S.A. 833 U.S.A. 831
2nd Germany 542 Germany 577 Germany 649 Germany 659
3rd Spain 451 Spain 463 Spain 550 Spain 578
4th United 399 United 434 United 477 United 543
Kingdom Kingdom Kingdom Kingdom
th
5 France 371 France 428 France 469 France 533
6th Italy 341 Italy 363 Italy 390 Italy 452
7th Japan 305 Brazil 304 Brazil 360 Japan 337
8th China-P.R. 282 China-P.R. 302 Japan 341 China P.R. 332
9th Brazil 275 Netherlands 291 Netherlands 315 Netherlands 307
10th Switzerland 244 Austria 267 China-P.R. 311 Brazil 291
11th Australia 239 Canada 255 Austria 278 Austria 287
12th Canada 229 Switzerland 240 Canada 273 Canada 265
13th Netherlands 219 Japan 233 Australia 253 Australia 260
14th Austria 212 Portugal 228 Switzerland 241 Sweden 238
15th Portugal 194 Republic of 207 Sweden 233 Portugal 229
16th Sweden 192 K
Australia 204 Republic of 229 Switzerland 226
17th Republic of 186 Sweden 195 K
Portugal 213 Republic of 222
Korea Korea
18th Argentina 172 Argentina 186 Argentina 202 Argentina 191
19th Belgium 164 Belgium 179 Belgium 194 Turkey 190
20th Turkey 160 Mexico 175 Denmark 185 Belgium 187
Fig. 2.5 Ranking ICCA 2010–2014/Number of international events. Source: ICCA
The travel and tourism sector has been developed as a strategic sector, and the
tourism industry is still growing. It is a sector that is developing attractive tourism
destinations and service activities. The federal and local governments are taking the
initiative to create appropriate incentives to develop this sector. The mechanisms
verified into the Tourism Statute are called Resource Channeling Mechanisms in
Tourism.163 It encourages suppliers to invest in tourism activities to become tourist
service providers.164
Besides these developments in tourism policy, the diversity of landscape, the
entertainment on cities and events attract not only Brazilians but also travellers from
South America and overseas. Beyond the attractive tourism destinations, there are
also specific events such as the yearly Carnival in Rio de Janeiro (February),
Oktoberfest in the southeast of the country (October), Cristal Fashion Week in
Curitiba (April and October), Sao Paulo Fashion Week (spring or fall) and the
most recent Travelweek Sao Paulo.
163
Act 11.771, 2008, Arts 15 to 20. The wording of the provision can be rephrased to ‘the
fomentation of the tourist activities’.
164
Idem, Art 21.
Destinations are significant too. The main destinations are the beaches of Angra
dos Reis, Paraty, Florianópolis, Fernando de Noronha, Ilhabela, among others.
Nature destinations are Amazonia (Amazon), Lençois Maranhenses, Foz do Iguaçu,
Chapada Diamantina, Pantanal. Main city destinations are Sao Paulo, Rio de Janeiro,
Salvador, Fortaleza and Curitiba.
2.3 Tourism Law
For the purpose of clarity, it is to be noted that under Brazilian law, the field ‘travel
and tourism’ is not clearly a traditional field of law attached directly to a branch of
law. As in many other sectoral fields, consumer law absorbs and intertwines with
tourism issues. It does not exclude the Civil Code, international treaties or any other
special rules that simultaneously affect a specific travel case.
Firstly, there is not any specific statute dealing with travel and/or tourism matters
in a single and exclusive private law framework or even in a mixed private and
public law framework. Secondly, although the Tourism Statute governs the relation-
ship between government and suppliers, it did not set up private contractual issues
between the consumer (traveller) and the supplier/retailer or seller. The Consumer
Defence Code comprehensively covers such a relationship but makes no mention of
traveller or even tourism.
As it happens, because of a lack of exclusive principles, ‘tourism law’ is consid-
ered a subset of consumer law rather than a separate field of law.
Certainly, the expression ‘Tourism Law’ (Direito do Turismo), as proposed in
Brazil by a few authors, does not meet the current legal tradition as the term implies.
The legal tradition is a set of deeply rooted, historically conditioned attitudes
about the nature of law, private or public; about the role of law in society; about the
organisation and operation of the legal system, the polity and principles adopted that
provide a reliable field of law. The legal tradition relates the legal system to culture,
of which it is a partial expression, and puts the legal system into cultural perspective
on the grounds of leading principles.
The current legal system in Brazil is the civil law tradition, which is the oldest and
the most widely distributed worldwide. It is today the dominant legal tradition in
most of Western Europe, all of Central and South America and some parts of Asia
and Africa.
Nevertheless, in the past, there were restrictions to accept a separate field of law
with mixed public and private law rules, meaning a fragmentation trend in the
general contractual law. Nowadays, there is no doubt that consumer law is a field
of law. The Consumer Defence Code is a microsystem rather than a particular statute
listing principles or rights and duties of the consumer and supplier. The basic idea
was exactly to intertwine different sources of law in order to afford more protection
2.3 Tourism Law 47
to the consumer.165 The Federal Constitution sets forth the defence of consumer
twice, as a fundamental right (Article 5 (XXXII)) and as an economic activity
(Article 170 (V)).
On the other hand, there is not the same treatment for the traveller. The Consti-
tution not provides rights to the traveller, tourist or visitor similar to that of the
consumer. The Constitution refers to the protection of the tourist and landscape
heritage in Article 24 (VII). It is grouped amongst those provisions on the concurrent
jurisdiction of the Union, states and Federal District (Brasilia). Another important
provision is Article 180, which sets forth that the Union, states, Federal District and
municipalities shall promote and foster tourism as a social and economic factor of
the country’s development.
However, in a broad sense, there would be no tourism without the traveller.
Whilst tourism is an economic activity tied with travel, on the other hand travel
refers to the activity of travellers. This leads to the conclusion that the existence of
the traveller is the intimate cause of travelling and therefore the recognition of
tourism as an economic activity.
A traveller is someone who moves between different geographic locations, for
any purpose and any duration,166 attracting the interest of the travel industry. Studies
have pointed three categories of travel: (1) leisure; (2) businesses, congresses and
events; and (3) other purposes.167
There turns out to be two significant aspects of tourism law: (1) the economic
activity and (2) the person activity. These are the first basis to develop an accurate
legal theory towards justifying travel and tourism law as a field of law. As said,
further measures need to be adopted to tackle a field of law more consistently. These
have to be addressed by policy and leading principles providing a reliable under-
standing of the field. For the time being, under Brazilian Law, the field ‘tourism law’
is questionable and controversial.
The focus of the travel and tourism industry is not solely on tourism within the
scope of leisure. It also points to every activity taken by travellers. Therefore, whilst
the term ‘travel law’ implies directly a person’s rights (right to travel or movement),
the term ‘tourism law’ does not; rather, it implies an economic activity. This leads to
the assumption that under the Brazilian legal framework, in a later stage, ‘travel and
tourism law’ might be taken as a better option to achieving a subset of consumer law
covering all travel situations.
Even so, it is feasible consider travel and tourism rules as they are locating in the
legislation. Likewise, to consider aspects of public and administrative law that apply
to tourism.
As said, the rules of tourism are not harmonised in a legal framework that targets a
separate field of law. The terms ‘travel’ and ‘tourism’ are usually taken synony-
mously either by the legislator or practitioners. The history of travel and tourism
165
166
UNITED Nations, ST/ESA/STAT/SER.M/83/Rev.1; 2008, § 2.4.
167
MTUR, Brazilian Ministry of Tourism (2006–2012), p. 4.
legislation is comparably short. In 1958, Decree 44.863 set up the first Brazilian
Commission on Tourism (COMBRATUR), which had a function to develop tourist
planning. Later, in 1966, Decree 55, which also created the public company named
EMBRATUR—‘The Brazilian Tourism Company’, transferred the functions of
planning to a Tourism National Council (CNTUR). Later, Act 8.181/91 changed
the name of EMBRATUR to ‘The Brazilian Tourism Institute’ and revoked Decree
55.
Though tourism is only a recent phenomenon in Brazil, in 1971 the Federal
Educational Counsel launched the first curriculum to faculty of tourism oriented
for professional training.168 In 2000, the Ministry of Education created a commis-
sion of experts in tourism. The commission was responsible for issuing licences to
faculties interested in implementing courses of tourism and accommodation.169 It
empowered faculties to create several courses, for bachelor or master on tourism
preparing people to work in the sector.
Prior to 2003, tourism issues were managed by the Ministry of Sport and
Tourism, which had cumulative functions. Then in 2003, an exclusive Ministry of
Tourism was created,170 separated from Sport. The new Ministry functions made
easier to spread tourism in the country, with the assistance of EMBRATUR and
CNTUR.
Along with the Federal Constitution,171 legislative enactments and administrative
rules in the tourism area have been started vigorously. These legislative enactments
are primarily concerned with guiding, planning and licences related to public and
administrative laws focusing on the relation between government and suppliers of
tourist services.
Examples are the certification of tourist services,172 recognition of the profession
of tourist guides173 and the creation of the Tourism National Statute,174 regulated by
Decree 7.381/10.
2.3.1 The Tourism National Statute
The Tourism National Statute, Act 11.771/08 and Decree 7.381/10 are the recent
pieces of legislation on tourism. Although the Decree regulates the Statute, the scope
and extent of each legislation differ in substance.
168
Parecer 35/71 do CFE—Conselho Federal da Educação.
169
Portaria 1518/2000 do Ministério da Educação.
170
Act 10.683, 2003, Statute of administrative organization of the Presidency and Ministry. In 2008,
the Decree 6.705 recreated the CNTUR.
171
CF, 1988, Art 24 (VII) and Art 180 recognised the importance of the tourism.
172
Act 11.637, 2007.
173
Act 8.623, 1993.
174
Act 11.771, 2008.
2.3 Tourism Law 49
Whilst the Tourism Statute mainly tackles the relationship between the govern-
ment and the suppliers, Decree 7.381/10 mixed the provisions and included few con-
tractual law provisions between the consumer (traveller) and the supplier.175
However, a decree is an administrative rule unilaterally enacted by the President.
The interpretation between the Tourism Statute and the Decree may fluctuate both
with the skill of the interpreter and the consistency of the judges.
At the time the statute was enacted, few authorities and some law practitioners
started to name it as ‘Tourism General Statute’ inducing the idea of principles and
rules with the purpose to guide the tourism sector. However, a ‘general statute’ is a
reference for other sectoral statutes. A ‘general statute’ is a reference in the legal
system. Obviously, the content of the Tourism Statute is far from a comprehensive
reference for the sector.
The CDC, for instance, is a general statute. It regulates consumer relationship in
sectors such as health aid, domestic and international carriage, tourism and others. If
there is contradiction between the CDC and a sectoral law, the CDC applies.176
However, whilst general laws are considered ruling laws, that is, they set forth
principles and rules in a particular sector, special laws/statute are limited to a part
of a sector (ius singulare). Thus, in case of conflict, the special law/statute will
prevail.177
In this regard, the Tourism National Statute is neither a general law/statute nor a
special statute since it did not carve general principles or rules for the tourism sector
as a whole, nor did it regulate part of the tourism sector in private law matters
concerning consumers. The Tourism Statute replaced the former Act 6.505/77,
which is an administrative statute that focuses on the relationship between the
government and tourist service providers, the suppliers. Even so, the Act set up
key definitions that are useful to courts and law practitioners in drawing a picture on
travel and tourism matters.
2.3.1.1 Legal Definitions
The Tourism National Statute defines ‘tourism’ as follows:

Art 2: the activities undertaken by a natural person while traveling and staying in places
other than their usual environment for a period less than 1 (one) year for leisure, business or
other purposes.
The sole paragraph of the article emphasises that the travelling and the staying
ought to generate economic returns, income and public revenues.178
The Tourism Statute sets forth five criteria for ‘tourism’:
175
Decree 7.381, 2010, is the regulation of the Tourism National statute.
176
Marques, Claudia Lima quoted by Nunes and Serrano (2005), p. 8.
177
Machado (2004), p. 94.
178
Act 11.771, 2008, Art 2, sole paragraph.
1. an economic activity
2. while traveling and staying in places
3. other than their usual environment
4. for a period less than 1 (one) year
5. for leisure, business or other purposes.
The main point of this definition is that it excludes trips taken for free, for
example a hitchhiker travels to a friend’s house for the purpose of visiting a friend
for a short period of time and stays overnight without any cost. According to the
interpretation of the Tourism Statute, if the trip does not generate any cost, it is not
considered as a tourism activity.
It is also relevant to note that the main focus of the provision is on the natural
person whilst traveling, which excludes legal entities. Moreover, the purpose of the
travel is not limited to leisure but also comprises business and other purposes.
Within the Tourism Statute, the precise term travel (viagem) is barely used. The
definition appears to have been missed or omitted in essence by the statute, whereas
the provisions indicating such a term do not provide a travel legal framework.
Yet in the sphere of definitions, the Statute and the Decree strived to identify two
main elements: ‘tourist services’ and ‘tourist services providers.’ The term ‘travel
services’ is not under the law. Article 21 draws the term tourist services as services
offered by ‘tourist service providers’. With the exception of a narrow definition in
Article 27 § 3 relating exclusively to tourism agencies, there is not an accurate and
comprehensive definition of ‘tourist services’.179
The definition laid down by Article 27 § 3 sets forth that tourist agent’s activities
comprise offering, booking and selling. The statute calls these activities ‘tourist
services’, which include ticket booking, tourist accommodation and other services,
as well as educational programmes and professional improvement.180 The term also
refers to complementary activities of the tourist agent (Article 27 § 4), for example
obtaining passports, tourist transport, clearance of baggage during travel and excur-
sions, vehicle rental, obtaining visas or any other documents needed for travel
accomplishment and so on.181
The definition of ‘tourist services providers’ is found in Article 21, which
named businesses, companies, single societies, individual entrepreneurs and social
services as such. These entities perform a tourist economic activity if they fall into
one of the following categories: (1) tourist accommodation provider, (2) tourism
agencies, (3) tourist carriers, (4) events organisers, (5) theme parks and (6) tourist
camps. The list is enlarged by the sole paragraph that reserves an option for those
businesses interested in joining the economic activity, as for example: restaurants,
cafes, bars, thematic aquatic parks and enterprises equipped with entertainment and
leisure devices, and so on.
179
Idem, Art 21.
180
Idem, Art 27 § 3.
181
Idem, Art 27 § 4.
2.3 Tourism Law 51
The main question is how the legislation differentiates tourist services providers
from other services providers. At one level, even posing the question seems rather
obvious, but in short, Article 22 summed it all up by providing authoritative criteria
for the identification of a tourist services provider.
It states that solely those recorded in the Ministry of Tourism’s database shall be
considered to provide ‘tourist services’. The period to be part of the database takes
2 years. The database is mandatory for any business’s branches; nevertheless, air
transport services are excluded (§ 1, § 5). It is noteworthy that the provision sets
forth an obligation rather than an option to those offering ‘tourist services’.182
Taking into account the six categories mentioned above, Article 23 sets forth the
legal definition for tourist accommodation. The service is the target of the defini-
tion, independently of the formal manner in which the legal entity is created. The
business has to provide temporary ‘tourist accommodation services’ offered in
individual units for the exclusive use of guests. In addition, other services like
hosting services are ‘tourist accommodation services’ upon a written contract or
not, expressed or implied, and agreed based on a daily price.183
Regarding timesharing, it is understood as a ‘tourist accommodation service’
handled and controlled by an interchangeable management. It comprises the orga-
nisation and transfer of periods of use of the property between assignees of different
tourist accommodations.184
The division of the business into units of hotel does not deprive the ‘tourist
accommodation service’ whereas that the ownership of the units belongs to several
persons altogether. In this case, the sole requirement is that the unit has to be
determined exclusively to accommodation.185
In this regard, tourism agencies,186 tourist carriers,187 organisers of events188
and theme parks189 are considered legal entities. However, the law did not identify
what type of person tourist camps are. The provision is only limited to the definition
of tourist camps: areas set up and arranged to receive tents, car trailers or similar
equipment, which have the necessary facilities, features and particular services to
make lodgers’ outdoor stay easier and convenient.190
182
Idem, Art 22.
183
Idem, Art 23.
184
Idem, Art 23 § 2.
185
Idem, Art 23 § 3.
186
Idem, Art 27.
187
Idem, Art 28.
188
Idem, Art 30.
189
Idem, Art 31.
190
Idem, Art 32.
2.3.2 Decree 7.381/10
The President enacts decrees. In order to be valid, it requires a statutory basis the
same way as other administrative rules enacted by the Ministry of Tourism or its
agency, EMBRATUR. If the content of a decree is irreconcilable with a statute, then
it shall be declared void by the courts. What’s peculiar about these rules is that they
are targeting to detail the statute rather than to create rights and duties between
parties.
Precisely, whilst a statute details the provisions of the Constitution, a decree
refines the statute’s provisions and eventually adds variables to an existing provi-
sion, but it cannot create rights and duties. In this regard, Decree 7.381/10 surpris-
ingly mixed public and private law provisions. There are provisions tackling
contracts between the ‘tourist services providers’ (suppliers) and the consumer.
The Tourism Statute did not originally contemplate those provisions.
The problem arises in the legislative technique of the Brazilian legal system
caused by improper sectoral pressures, which may be void for uncertainty. The
legal system has also created remedies as counterbalances to restrain the impact of
unwelcome legislative techniques, but only in limited circumstances. The Article
7 of the CDC prescribes a remedy, which does not exclude regulations set forth by
administrative authorities if they are taken for the benefit of the consumer, as further
discussed.191
Thus, Article 27 of the Decree bounds tourist accommodation providers to
include price information in advertising. The price has to be printed or by any means
has to be easily accessible to the consumer. Further, § 2 states that tourist accom-
modation providers ought to include in the advertising any agreement made between
parties. That is to say, all services included in the daily price, any eventual fees
chargeable for services, the means by which the price list referred to, and any other
services offered, whether printable or not, ought to be included in the advertising.
Thus, between the provisions of the CDC and the Decree, the court will take into
account those most favourable to the consumer in view of Article 7 of the CDC.192
As regards timesharing, Article 29 sets forth that a tourist accommodation
provider may use units of a hotel that belong to a third party, listed in Article
191
Act 8.078, 1990, Art 7: The rights set forth in this Code do not exclude any other rights that may
come as a result of international treaties or conventions ratified by Brazil. In addition, they do not
exclude the internal legislation on regulations set forth by administrative authorities with jurisdic-
tion, as well as any other rights that stem from the general principles of Law, analogy, custom and
equity.
192
STJ REsp 489.895/SP, j.2010: ‘According to Art 7 of the CDC, whether any statute grants rights
to the consumer, this statute can join the consumer microsystem, including itself in the special
protection of the consumer system (..) Thus, the deadline of Art 27 of the CDC does not apply to the
file. It shall apply the deadline of Art 177 of the CC/16, because it is most favourable to the
consumer.’
2.3 Tourism Law 53
24 (II) of the Tourism Statute,193 to offer agreements in a timesharing framework.

Contracts of interchange services are different from timesharing contracts (Article
31). Contracts of interchange services ought to contain clauses determining the
exchange services of the period of occupation, which are under administration of
the hotel. The sole paragraph of Article 31 left to the Ministry of Tourism the burden
to set up requirements and minimum standards for interchange services.
The Article 32 of the Decree sets forth the following duties for tourism agencies:
The contract of services offered by tourism agencies shall provide:
I - the conditions of alteration, cancellation and refund of payment for services;
II – the name of the companies and ventures included in the package travel;
III – whether there is any restriction to conclude the contract; and
IV – all other information needed in regard to the service.
The Article 33 specifies that the agreement for the ‘tourist package’ offered by
tourism agencies shall include the name, address and tax number of the suppliers.
The sole paragraph adds that tourism agencies shall provide sufficient data to
identify and find tourist service providers located in foreign countries.
Such a rule, enforces the supplier’s liability since the tourism agency is obliged to
give the data of each supplier involved in the chain of suppliers. According to the
Consumer Defence Code, all suppliers are solidarily liable194 to pay compensation in
case of damages related to service defect under the principle of solidarity. The tour
operator or any other supplier such as the hotel, the restaurant and the air company
are liable even without fault. For example, if the hotel does not comply with the
booking previously arranged for the package travel, the liability rests on the tourism
agency, as well as on the hotel.195
The consumer shall sign three documents.196 The first one is the termo de
conhecimento (awareness form). It sets forth that tourism agencies offering adven-
ture tourist services shall provide additional information in writing on (1) whether
the equipment is safe (2) the necessary measures to be taken in regard to safety and
environmental protection (3) the legal consequences in case of disagreement.
The second one is the termo de responsabilidade (responsibility form). It shall
specify the risks involved in the travel and the necessary measures to be observed to
193
Act 11.771, 2008, Art 24, II: the enterprises or legal entities known as condominium hotelier,
flat, flat-hotel, hotel-residence, loft, apart-hotel, apart-service condominium, condo hotel and the
like, that own a license to construct or certificate of construction concluded, issued by the
competent authority, accompanied by the following documents: (..).
194
Act 8.078, 1990, Art 7, Sole paragraph: lf the offense was carried out by more than one author,
everyone will be jointly liable for the compensation of damages according to the norms of
consumption. Art 34: The supplier of product or service is jointly liable for the actions taken by
their representatives.
195
TJSP Ap.0006109-36.2011.8.26.0037/SP, j.2014.
196
Decree 7.381, 2010, Art 34 § 2 item IV, V.
avoid such risks. In addition, it must inform the consumer how to use equipment and
tools for first aid.
The third and last document is the termo de ciência (second awareness form),
which must explain the official rules and necessary arrangements concerning both
the travel and the tour provided by the agency.
There are discussions regarding provisions set up by a decree instead of a statute.
However, the legal technique of preferring a decree to design private law provisions
to a statute should not diminish the value of the benefits granted to travellers. That is
to say, the interpreter must look to Article 7 of the CDC, which does not exclude any
other rights resulting from the combination of laws, particularly internal legislation
and regulations, set forth by administrative authorities.
In this context, the Decree considers consumer interest in terms of enforcing a
strong presumption in favour of the vulnerable party. The validity of the Decree is in
line with the Consumer Defence Code.
2.4 Travel and Tourism Contracts and Other Service

Contracts
The field of law called travel law (or tourism law or even both travel and tourism
law) is not found or clearly recognised as a separate classical field of law with
autonomy over civil law. As it happens, there is the question of how to recognise
travel and tourism contracts within the Brazilian legal framework and separate them
from other service contracts.
Contract law in Brazil is primarily civil law, embodied in the Civil Code. Some
rules laid down by the Code are mandatory (compulsory) and cannot be avoided by
the parties, whilst others are suppletory (interpretative) and can be altered by
agreement. The Code contains important provisions on the formation of contracts
for the sale of goods and services and regulates particular type of contracts such as
consignment assignment (Articles 534 to 537), commission (Articles 693 to 709),
agency and distribution (Articles 710 to 721), brokerage (Articles 722 to 729),
carriage (Articles 730 to 756). These contracts are called typical contracts or
nominate contracts.197
Along with the Civil Code, sectoral legislation also applies, for instance air
carriage (the Brazilian Code of Aeronautics198 and international treaties such as
the Montreal Convention), health insurance, energy, communication and so on.
Of fundamental relevance are contracts that are not specifically regulated199 and
not specifically nominated by the Civil Code or special laws. However, they are
197
In Brazilian Portuguese it is named: ‘Contratos típicos’ or ‘Contratos nominados’.
198
Act 7.565, 1986.
199
In Brazilian Portuguese it is named: ‘Contratos atípicos’.
2.4 Travel and Tourism Contracts and Other Service Contracts 55
allowed to be made according to Article 425 of the Civil Code.200 They are the
innominate contracts, also known as atypical contracts.
Although innominate contracts are non-regulated contracts, they have a set of
standardised clauses that shall be considered general clauses, for example (a) a
clause declaring null and void payment in foreign currency201 (except if allowed by
law), (b) a prohibition on penalty clauses to go beyond a reasonable amount,202
(c) good faith provision,203 (d) time limit of 5 years to file a claim in consumer
relationship204 and many other clauses.
Any contractual clauses agreed between parties tending to relieve the parties from
general clauses shall be null and void. The nullity of any clause shall not include the
nullity of the whole contract. However, if a clause has not been integrated into the
contract despite efforts by the parties and the absence of such a clause is excessively
costly for any of the parties involved, the whole contract is null.205
It is not sufficient that the law discloses the name of the contract in view of the
fact that there are contracts named by law that did not receive appropriate regulation.
To ensure the effectiveness of the nominate contract, an entire contractual law
regulation through an appropriate statute is required.206
Beyond the importance of the ‘theory of general contracts’, which explains a
variety of classification, types and nature of contracts, the main focus here lies in
travel and tourism contracts. In this regard, it seems that another big topic has
emerged from the debate: what is the best way to name a travel and tourism contract?
What is the best term? Would it be travel contract? Would it be contract of tourism?
Would it be simply travel and tourism contract? The authors take different views on
which terminology to take into account to create a classification for travel and
tourism contracts.
It is difficult to establish an appropriate word for a contract for ‘tourism’. It is still
not clear how to classify the contract in view of both the complex legal nature of
travel and tourism and the lack in legislation. Some authors have attempted to
introduce a distinction between a contract of tourism and a contract of travel, arguing
that the latter includes services that are not related to leisure, as for instance, a
business travel.
Although this distinction might seem reasonable, there are those who defend the
theory that in contracts of travel, there is not a consumer relationship. This is because
the purchaser might not be the final addressee but a legal entity.
200
Act 10.406, 2002, Art 425: The parties are allowed to set up innominate contracts, but general
clauses shall be accounted.
201
Decree 857, 1969, and Act 8.078, 1990, Art 53 § 3.
202
Act 8.078, 1990, Art 52 § 1.
203
Act 10.406, 2002, Art 422, and Act 8.078, 1990, Art 4, III.
204
Act 8.078, 1990, Art 27.
205
Idem, Art 51 § 2.
206
Azevedo (2009), p. 132.
On the other side, such a view has been criticised by recent commentators as they
have pointed out that in contracts of tourism and in contracts of travel, there is an
obligation of result rather than of conduct or behaviour. That means the traveller uses
many services as a final addressee that the purpose of the travel is irrelevant. That is
to say, whether the travel is aimed at leisure, business, education, health treatment
and so on, there will be always a contract of consumption.207
The discussion begins whether to use the term travel or the term tourism to
classify the service as an economic activity. The service is the object of the contract.
There are four lines of reasoning:
First,208 the classification that take into account the concept of travel. The ones in
favour of this reasoning stresses that ‘travel’ is better because the terminology is
broader in scope than the term ‘tourism’. The term tourism in regard to travel tends to
be understood restrictively for leisure. Travel involves a group of activities, devel-
oped and offered to consumers, which move to different places distinct from their
permanent residence. Moreover, the core of the concept is the activity rather the
nature of the services offered. It means that services are both availed by ‘consumer
residents’ and ‘consumer travellers’. Although both of them are main consumers of
local services such as food, entertainment, car rental, clothing and so on, there seems
to be no doubt that some services are designed specifically for travellers like air
carriage and other services provided by travel agencies.
To this reasoning,209 tourist contracts—as it is called (not tourism contracts)—
may be divided into two categories: (1) production and (2) distribution. Whilst
production comprises three sub-categories, namely (1.1) carriage, (1.2) accommo-
dation and (1.3) entertainment, distribution is divided into (2.1) promotion and (2.2)
sales. Service of carriage may be classified into the following types: air transport,
road transport, rail transport, maritime transport and inland waterways. Accommo-
dation services include hotel, food and beverages, and leisure facilities. Entertain-
ment services include all equipment, structure and features used by the traveller such
as convention centres, fairs, exhibitions, museums, theatres, cinemas and the like.
On the other side, promotion and sales may be done directly by the supplier or
through a third party like franchisers, representatives and travel agents. Promotion
includes sales promotion, marketing, advertising, brochures and the like. Sales are
done by means of regular and good commercial practices.
The second reasoning210 also takes into account the term ‘travel’ to separate
travel contracts from contracts of tourism. It asserts that a travel contract is broader
than a contract of tourism, which encompasses any type of contract, such as contract
of tourism, contract of carriage (air, road, rail and maritime), accommodation
contract, business travel contract and others. Whilst the travel contract carries duties
that are not always related to leisure, the contract of tourism is always attached to
207
Feuz (2003), pp. 62, 63.
208
Ferraz (2005), p. 127.
209
Idem, pp. 127, 128.
210
Feuz (2003), pp. 61–71.
leisure. In addition, the expectations of the parties at the time they enter into their
contractual obligations are different. Thus, a ‘business travel contractual relation-
ship’ is different from a ‘tourism contractual relationship’. As a result, in a ‘business
travel contractual relationship’, the expectation of the party is to use the contract in a
way to reach a purpose (carriage, accommodation); in contrast, in a ‘tourism
contractual relationship’, the party’s expectation is to use the contract as a purpose
(leisure).
The third reasoning211 tackles the concept of tourism rather than the concept of
travel, stressing that in a broad term, tourism is a phenomenon that includes travel
and temporary stay, for any reason, covering all activities that are available to
support the travel and the temporary stay of people. This reasoning stresses that
tourism is not limited to travel, this being only one facet of tourism. Further, tourism
is not attached to a consumer relationship in view of the fact that someone may travel
to a friends’ house as a hitchhiker for free for the purpose of visiting a friend for a
short period of time and staying overnight. That is tourism but not a consumer
relationship. Both accommodation in a friend’s house and the hitchhike provided for
free shape relations under the coverage of the Civil Code rather than the Consumer
Defence Code.
In addition, in line with this reasoning, tourism is not limited to leisure only.
There are leisure tourism, business tourism, health tourism, religious tourism,
educational tourism and sportive tourism. It is not limited to accommodation
because residents might also use tourist services offered by a hotel even if they are
not tourists. Moreover, neither means of movement nor geographical position is a
limitation for the concept of tourism. There is tourism by air, road, rail, maritime and
inland waterways.
Although this reasoning provided a glimpse of the distinction between travel and
tourism, it did not technically distinguish contracts itself, except that it referred to
tourism contracts as a whole, integrated with the concept of contract of adhesion.
The analysis did not go further, and no deep examination about contracts was done.
Those outside the field of legal sciences, belonging to the field of applied
economics, are close to this line of reasoning. They state a definition for tourist
based on UNWTO’s classification, saying that the purpose of a tourist’s travel may
be classified into (1) leisure (recreation, holiday, health, study, religion and sport)
and (2) business, family, missions and conferences.212
Finally, the fourth reasoning213 stresses that a contract of tourism shall be set up
by a travel and tourism agency. The contract has to encompass a range of services in
which the agency determines the arrangements and combination of the travel
services provided to the traveller. The single components purchased by the traveller
through the travel and tourism agency, such as air, rail and road tickets; hotel
booking; ticket to tourist destinations; assistance to obtain visa or any other
211
Mamede (2004), p. 136.
212
Beni (2001), p. 35.
213
Scartezzini Guimarães (2010), p. 231.
documents, are not included in the concept of contract of tourism. In this case, the
contract can be a carriage contract, an accommodation contract or any other service
contract rather than a contract of tourism. This is to say, the contract of tourism
must combine services whlist other contracts must not (single components). The role
of the travel and tourism agency is in fact either an intermediary or a supplier of
services.
As described, it is possible to conclude that travel and tourism under the Brazilian
legal system has neither a precise classification nor a particular statute setting forth
contractual law provisions between suppliers and travellers. The legislation is broad,
covering all types of consumers. Although the legislation does not help for a better
classification, the authors advocate for a comprehensive legal scheme. Therefore, the
different approaches reveal the need for a further accurate legal framework.
2.4.1 Contract of Carriage of Passenger
The contract of carriage is a formal legal arrangement between the passenger and the
carrier for the service of carriage of passengers and their luggage. It is a nominate
contract214 with legal grounds found in Articles 730 to 756 of the Civil Code. The
service of carriage is classified by the doctrine according to each type, for instance
air, road, rail, maritime and inland waterways. Sectoral laws shall also apply such as
Act 7.565/86 (Code of Aeronautics), the Montreal Convention, Act 11.975/09 on
road carriage and administrative rules from administrative authorities such as ANAC
and ANTT.
The contract is typically a contract of consumption. It is a contract of result rather
than of means. This is to say, the service provider must ensure that the passengers
will arrive at their destination accordingly.
There is no unanimity amongst authors on the classification of this type of
contract. Whilst some authors separate contract of carriage from contract of service,
there are those who define the contract of carriage as a subset of contract of
service.215
Party autonomy for contracts of carriage is also subjected to limitations. For
instance, according to Article 739, it is forbidden for the carrier to refuse the carriage
of any passenger without valid reasons. These reasons can be justified by safety,
health and hygiene or by any other exception created by law. In addition, the carrier
cannot avoid paying any type of compensation to the passenger even if the contract
prescribes an exemption clause in this regard. If the contract of carriage contains
such a clause in it, that clause is null and void.216
214
The so-called in Brazilian Portuguese: ‘Contratos típicos’.
215
216
Act 10.406, 2002, Art 734. See also STF Sumula 161.
Although the contract of carriage is expressly regulated by the Civil Code,

authors217 have argued on which law to apply in case of conflict. Contracts of
carriage should be governed by general law and further special laws,218 and there
is lack of clarity on which one must prevail.
For instance, taking into account the contract of air carriage, whether there is
conflict of laws, judges are bound to conceive, interpret and apply the law according
to the subject analysed. Such conflict is not only between general law and special law
but also between national and international laws. The core of the issue is related to
the compensation in cases of damages relating to pain and suffering219 and material
damages. Whilst material damages are regulated by both national laws and the
Montreal Convention, there are deep discussions concerning damages relating to
pain and suffering, the so-called moral damages, better known in English as imma-
terial damage. The latter has a narrow and limited application under the Montreal
Convention.
The first distinction between national laws and the Montreal Convention is in
respect of the type of air carriage, whether the passenger is involved in domestic or
international air carriage. Whilst the Brazilian Code of Aeronautics applies only to
domestic carriage,220 the Montreal Convention, on the other hand, applies to inter-
national carriage.221 Moreover, the Consumer Defence Code and the Civil Code
apply to both national and international carriage in terms of determining the liability
of the air carrier.
On the one hand, air carriers prefer the application of the Montreal Convention,
where the contract is for international carriage by air,222 and the Brazilian Code of
Aeronautics, where the contract is performed for domestic carriage by air on account
217
Ferraz (2005), p. 170.
218
Such as: the Montreal Convention, and the Code of Aeronautics—Act 7.565/86.
219
The psychological consequences of personal injuries, in terms of pain, shock, consciousness that
one’s life expectancy has been shortened, embarrassment caused by disfigurement, etc. Damages
are assessed on the extent to which the claimant actually experiences these feelings. Oxford, A
Dictionary of Law, 6th ed., New York, 2006.
220
Act 7.565, 1986, Art 215: ‘It is considered domestic and governed by this code any carriage in
which the starting points, intermediate and destination points, are located in national territory.’
221
Montreal Convention, O.J. L194, 18.07.2001 Art 1, § 2: ‘For the purposes of this Convention,
the expression “international carriage” means any carriage in which, according to the agreement
between the parties, the place of departure and the place of destination, whether or not there be a
break in the carriage or a transhipment, are situated either within the territories of two States Parties,
or within the territory of a single State Party if there is an agreed stopping place within the territory
of another State, even if that State is not a State Party. Carriage between two points within the
territory of a single State Party without an agreed stopping place within the territory of another State
is not international carriage for the purposes of this Convention.’
222
Example: The various kinds of air contracts or contract clauses have tended to feature quite
strongly that ‘(..) the Convention governs and in most cases limit the liability of carriers for death or
personal injury and in respect of loss of or damage to baggage. See notices headed Advice to
International Passengers on Liability and Notice of Baggage Liability Limitations.’ In Brazil the
Convention was ratified by the Decree 5.910/06 that entered into force on 27th Sep., 2006.
of their limitation on liability. On the other hand, passengers usually claim for the
application of the Consumer Defence Code because it provides many ways to
facilitate consumers’ defence, and it ensures that their rights are observed in the
courts. Under Article 6, item VIII, and Article 38 of the Consumer Defence Code,
the inversion of the burden of proof in favour of a disadvantaged person is made
possible.
Besides the Civil Code, the Consumer Defence Code has several provisions in
regard to reparation of damages. If the relationship between two parties is a con-
sumer relationship, the courts will mainly apply the Consumer Defence Code and,
only in a subsidiary function when necessary, the Civil Code.223 The Superior Court
of Justice, in 1992 by virtue of ‘Sumula’ 37, recognised that immaterial and material
damages are not strictly linked. The court concluded that ‘(. . .) there is cumulative
compensation of damages for material and immaterial damage from the same
fact’.224
Thus, according to another decision, if the fact has been proved, there is no need
to provide any other proof of immaterial damage.225
In practical terms, in case of liability on personal injury by pecuniary (material)
damage in international air carriage, the Superior Court of Justice (STJ) has not
hesitated to use the treaty and simultaneously the Consumer Defence Code for a full
compensation of immaterial damages.226
Nevertheless, some authors argue that there is coherence rather than contradiction
when applying simultaneously an international treaty, the Consumer Defence Code,
the Civil Code or any other special rules to a specific case. Hence, the actual doctrine
leads to a substantial harmonised interpretation of the law rather than to a formal
concept of conflict that disputes which one or the other of laws will be applicable.227
In other words, the Superior Court of Justice (STJ) has recognised that the contract of
air carriage shall be understood as a contract of consumer relationship. In this case,
the CDC does not exclude the Code of Aeronautics or the Montreal Convention.228
However, the correlation between the request and cause of action described in the
petition may take great importance by choosing either the treaty or the national law.
If the plaintiff filed a claim based on an international treaty that covers only material
damages setting a maximum limit for compensation and later he or she figures out
that the CDC will provide better protection, the basis of the claim cannot be changed
during the proceedings. That is to say, if both parties claim under the rules of the
treaty, the court will be unable to apply the CDC. Even recognising that the CDC
223
224
DJ 17/03/1992, p. 3172. REPDJ 19/03/1992, p. 3201. RSTJ vol. 33, p. 513. RT vol. 677, p. 203.
225
STJ AgIn 250.722/SP, j.1999, DJ 07/02/2000, p. 163.
226
227
Jayme (1995), pp. 259 apud Benjamin et al. (2010), pp. 108/109.
228
grants full compensation for material and immaterial damages, the court will take
into account the law upon which the claim was based to decide the dispute.229
2.4.2 Contract of Car Rental
The purpose of the contract of car rental is to allow the use of a car to the consumer
for a specific date or period of time. It is a formal legal arrangement between the
consumer and the supplier where the consumer is the car driver. There is no specific
sectoral or special legislation designed for this type of contract.
The supplier (locadora de veículos) of the service is a ‘tourist service provider’,
which has the possibility to register within the Ministry of Tourism.230 In this case,
the registration in a public database of the Ministry of Tourism is not mandatory for
the supplier of car rental on the grounds as it is biding for other suppliers.231
Although the Tourism Statute sets forth definitions for the car rental sector, it has
no binding effect on the contract concluded between the consumer and the supplier.
In this regard, the contract of car rental is a sub-category within the overall body of
contract of consumption, meaning that the CDC is the main legislation applied to
the contract.
Therefore, the consumer is entitled to withdraw from the contract of car rental in
view of the rights granted to all consumers as a whole.232
2.4.3 Contract of Accommodation
The contract of accommodation is a sub-category within the overall body of contract

of consumption. Whilst the general contractual consumer law imposes a duty to
exercise due care, the Tourism National Statute did not tackle duties on contractual
law but only tackled the definition of means of accommodation (Meios de
Hospedagem).233 In addition, the statute did not define contract of accommodation.
As already said, the provisions of the Tourism Statute are set up to regulate the
relationship between the government and the tourist service provider (supplier)
rather than to regulate matters between the supplier and the consumer (traveller).
The statute has no binding effect regarding contractual law provisions on the
contract concluded between B2C. In practical terms, the statute particularly raised
229
STJ REsp 240.078/SP, j.2001.
230
Act 11.771, 2008, Art 21 Sole Paragraph (VII).
231
Idem, Art 21 (I) to (VI).
232
See Sect. 2.1.3.3.
233
Act 11.771, 2008, Art 23.
a legal definition to assist the interpretation of the concept of tourist accommodation,

alongside the other definitions.
In the private law, contract of accommodation234 is an innominate contract,235
not particularly regulated by the Civil Code, and as already said, with the exception
of general clauses, the statute does not require any formal legal arrangement for it to
be performed by the parties. Outside the area of general contract law, the Tourism
National Statute did not set up contractual provisions in this regard, except Decree
7.381/10, which expressly set up narrow provisions for the contract of accommo-
dation. However, its enforcement ought to be combined with Article 7 of the CDC,
which applies only if it is of benefit to the consumer traveller.
The scope of the contract of accommodation is the service to provide overnight
accommodation, including a clean bed every night, clean towels and sheets, ensuring
the room is in a condition suitable to the consumer (traveller). According to the
doctrine, it is only possible to talk about contract of accommodation when other
types of services are offered or linked with accommodation such as food, conference
room, wellness centre and the like.236 If a person enters a hotel to use the restaurant
or the wellness centre solely in a single way, he or she is entering into a contract of
service rather than a contract of accommodation. Usually, in most situations, the
contract of service is performed with a third party unconnected with the accommo-
dation service provided by the main supplier with which the third party had a prior
agreement, sharing part of the operation of the business.
There are different types of tourist accommodation such as hotels, residential
hotels, camping and other similar residential tourist accommodation. According to
the Tourism Statute, the focus is not on the definition of the type of accommodation
but on the definition of the service provided as a ‘tourist accommodation service’.
In this regard, there are discussions about the service provided by a particular type of
accommodation, the so-called aparthotel or better known in English as condo hotels
(fractional). The aparthotel comprises a building with several single units (flats),
supplied with furniture and hotel services. It is legally a condominium but is
operated as a hotel, offering short-term rentals. Whilst the ownership is divided
into fractions amongst several owners, the business management service is usually
run by one hotel company. In addition, according to Article 23 § 1 of the Tourism
Statute, it shall be submitted to registration at the Ministry of Tourism.
Actually, this form of ownership blurs the line between what is described as paid
accommodation and what is described as ownership of real estate or vacation homes.
Given the nature and complexity of these arrangements, it becomes difficult to
identify and inform precisely about the type of accommodation or real estate service
used there.
As a result, the doctrine is divided. There are two situations to be found: (1) the
owner of the unit may rent it to a third party, directly or through a real estate
234
It is known by the doctrine as ‘Contrato de hospedagem’ (Contract of hospitality).
235
The so-called: ‘Contratos atípicos’ Act 10.406, 2002, Art 425.
236
company, or (2) the owner may transfer the property to the trustee group
(an associate pool), which reallocates the apartment, together with other apartments,
to be rented for a short period of time. The trustee is usually a hotel company.
Therefore, in the first situation, there will be a contract of rent between the owner
and the tenant subjected to the tenancy statute, whilst in the second situation there is
a contract of accommodation because the service provided is all-inclusive.237
Nevertheless, regarding the two situations mentioned above, a brief discussion of
the issue will round out the discussion on the kind of contract. That is to say, if the
agreement does not include services, the court has understood that the tenancy
statute shall apply.238 The scope of the tenancy statute is the regulation of habitual
residence, which does not cover aparthotels, which were set up to target short-term
rentals.239
More recently, the State Court of Sao Paulo ruled that the tenancy statute shall not
apply to a contract of accommodation, which is extended to a flat or aparthotel. Thus,
the law applicable is the Civil Code rather than the tenancy statute.240
It turns out that nearly all contracts of accommodation are classified as contracts
of consumption. An example of accommodation that is outside of this classification
is overnight travel, which is characterised as unpaid accommodation (e.g., stays with
friends and relatives, trips to owner-occupied vacation homes). These are excluded
from the coverage of contracts of consumption.
If one person receives another person (a guest) in his or her own domicile and
have the guest pay the costs incurred by the owner, there will be a contract of
accommodation but not a contract of consumption. This is because the owner does
not exercise economic activity as a supplier, and therefore the Consumer Defence
Code is not applied, only the Civil Code.241 There is also a case when a natural
person (physical person) from time to time rents to guests, for a short period of time,
his/her house located at the beach, in combination with other services such as
cleaning and providing breakfast. The activity is an economic activity performed
by the owner of the house, who is not a professional but only does the activity
occasionally. Therefore, there will be a contract of accommodation,242 which would
also be classified as a contract of consumption in view of the economic activity
exercised by the owner of the house.
As a result, the professional status of the supplier is not an essential element of a
contract of accommodation. It is not mandatory that the supplier will always be a
237
Idem, p. 6.
238
TJSP AI 0056571-40.2013.8.26.0000/SP, j.2013.
239
240
TJSP Ap.0102607-13.2008.8.26.0002/SP, j.2012. Moreover, aparthotel is excluded expressly
from the tenancy statute: Act 8.245/91, Art 1, sole paragraph. The following are regulated by the
Civil Code and special laws: (..) item IV: apart-hotels, hotels - residence or equivalent, considered
as those that provide regular service to its users and as such are allowed to operate.
241
242
Idem, p. 12.
hotel company. But if there is a professional person exercising the activity, then there
will be always a contract of accommodation243 with consumption characteristics.
Although the contract includes in the provision of services the duty of care of the
luggage or a parking space in a parking garage, it does not matter whether or not the
contract expressly states the inclusion of such services in view of the fact that the
no-fault strict liability is granted in favour of the consumer (traveller). The consumer
has the rights granted by the Consumer Defence Code.244 The supplier is liable even
if there is no fault. Further, any supplier/retailer/seller (provider) in the chain will be
liable, according to the principle of solidarity under the Consumer Defence Code.245
The hotel cannot avoid liability for stolen luggage left in the hotel by including a
no-liability clause into the contract. In fact, the hotel has the duty to receive the
consumer’s (traveller) luggage.246 The deposit of the things (luggage) brought into
the hotel by the consumer (traveller) is not free of charge, but rather it is included in
the price of the accommodation.247 Moreover, the duty of care relates to the
obligation to ensure the safety and security of consumers (travellers) whilst tempo-
rarily availing of the accommodation provided by the supplier.
As it happens, another question may arise in regard to the type of contract,
inasmuch as the contract is evidently a contract of accommodation, not a contract
of deposit. The hotelier is liable to the consumer (traveller) since the hotelier is a
depositary. The relationship between the hotelier (supplier) and the consumer
(traveller) is considered a ‘deposit by necessity’.248 It turns out that deposit is another
kind of contract, particularly nominated by the Civil Code.
However, as the deposit is linked with the contract of accommodation and its
price is included in the price of the accommodation,249 how can one distinguish
between one and the other contract? Or is it one contract, and there is no distinction?
When the question is framed in this way, the answer appears inescapable but no less
peculiar.
The contract of deposit is performed at the time the things (luggage) belonging to
the depositor (traveller) are transferred to the depositary (hotel) under its duty of care
for safe custody. Even if the belongings are not transferred to a hotel through the
simple act of entering into the room at his disposal carrying his luggage, there is a
contract of deposit.250
243
Idem, p. 12.
244
Act 8.078, 1990, Art 12, 14.
245
STJ REsp 1.102.849/RS, j.2009.
246
Act 10.406, 2002, Art 649, sole paragraph: The hoteliers are liable as depositors. They are also
liable for theft and robbery committed by his employees in their business premises.
247
Idem, Art 651: The deposit is necessary and shall not be free of charge. In case of the Art 649 the
payment for the deposit must be included in the price of the accommodation.
248
Idem, Art 649.
249
Idem, Art 651.
250
The contract of deposit is an auxiliary contract. Also noteworthy is the strong

provision set forth by Article 652 of the Civil Code. It concerns the civil imprison-
ment of the depositary (supplier) if he does not restitute the deposit (luggage) when
requested by the consumer (traveller). The sanction applied shall be up to one year
imprisonment and compensation of damages.
In regard to the exclusion of liability the Article 650 of the Civil Code states that
the hotelier’s liability ceases if it proves that the circumstances causing harm to the
travellers or guests could not have been avoided and damages were caused by the
consumer traveller’s fault. The doctrine of ‘exclusion of liability’ is reinforced by the
CDC.251 Thus, service providers are able to protect themselves by giving notice of
the possible consequences or risks of failure and that consumers would be respon-
sible for the damages incurred through their own fault. This is the case where the
consumer traveller misuses hotel equipment after having been aware of all the
information on the equipment’s operability. An example is when the customer
jumps dangerously into the swimming pool or endangers himself/herself by jumping
acrobatically from the window. These would be where exclusion of the hotel’s
liability applies.
However, courts have recognised concurrent liability (dividing the fault between the
hotelier and the consumer) in specific cases. For example, if the consumer provoked the
dangerous situation, such as jumping dangerously into the swimming pool, and on the
other hand the hotel did not provide enough information concerning the depth of the
water and the use of the swimming pool, the liability will be divided between the
supplier (hotel) and the consumer.252 The hotelier, must exercise the duty of care, mean-
ing whether under normal and reasonable foreseeable conditions, the hotelier has
ensured the safety of the consumer at all time, which is reasonably expected.
Obviously, if the hotelier’s liability is based on no-fault strict liability, the hotelier
cannot exclude the fault of one of his employees or subcontractors.
2.4.4 Timeshare Contract
The contract of time-sharing, time-share or timesharing is best recognised in the

Brazilian legal framework as an innominate contract. It does not mean that the
contract has no name but rather that there is not an apprehensible and exclusive
regulation for it. Article 31 of Decree 7.381/10 names it contrato de cessão por
tempo compartilhado. In Brazilian Portuguese, timesharing is also known as
‘multipropriedade’, meaning ownership is divided into fractions amongst several
owners.
This contract is not particularly regulated by the Civil Code, and therefore, as
already said, with the exception of general clauses, there is no formal legal
251
Act 8.078, 1990, Art 12 § 3.
252
STJ REsp 287.849/SP, j.2001.
arrangement required by law in order for it to be performed by the parties. It is

currently treated by the doctrine as an innominate contract. The law applicable is the
general consumer and contractual law.
Outside the area of general contractual law, the first fractional rules on
timesharing were enacted in 1997 by both the Ministry of Industry and Commerce
and EMBRATUR through administrative provisions.253 Furthermore, the Tourism
National Statute did not set up contractual provisions in this regard, except Decree
7.381/10, which expressly set up narrow rules on timeshare contract in Articles 28 to
31. However, the enforcement of the Decree shall be combined with Article 7 of the
CDC, which does not exclude regulations set forth by administrative authorities if it
is to the benefit of the consumer.
The main characteristic of the contract is that it is tied not to a specific apartment
or house but rather to the right to use and occupy any apartment or house belonging
to the supplier (which may be a hotel company) for a certain period of time. The
consumer traveller is entitled to occupy exclusively an immovable property assumed
through the contract. The contract ought to include a term for a period of time of the
year. Although the Decree refers to a certain period of time agreed upon in the
contract by the parties, in substance it did not define a fixed period of time.
Neither the period of time nor the extent of the contract is determined by the
Decree. According to this regulation, the period of time fixed by an agreement ought
to be characterised either by time or by points, being fixed or floating in the
contract.254
Although it might appear that the parties are free to choose the time more suitable
for them, this is not the case. This is because from a supplier’s perspective,255 a
timeshare contract can be a way for suppliers to encourage consumer travellers to
travel in the low season. It could reduce the seasonal problems for the supplier
regarding low booking rates. Therefore, the values of freedom of contract and private
autonomy are diminished by excluding contracts individually negotiated. Yet it is a
contractual relationship covered by the CDC, being a consumer relationship related
to private consumption, where the contract is a contract of adhesion256 and the
consumer traveller is particularly vulnerable. Consequently, it is reasonable to
suppose that the time available (the right to use and occupancy) is always during
the low season, in which consumers have no choice.
Timesharing is used in the area of tourist accommodation to create
rights in situations where tourist apartments or tourist houses belong to a hotel
253
Deliberação Normativa 378, 12.08.1997.
254
Decree 7.381, 2010, Art 28 § 3, § 4.
255
According to Art 28 § 1 of the Decree 7.381 the supplier shall be a hotel service provider.
256
Contract of adhesion is a ‘standard term contract’ which is offered to the consumer without
negotiation of its terms. Though European Law has not literally adopted such a term, it is widely
used in Brazil, e.g. Art 54 of the CDC specifies that: ‘A contract of adhesion is the one that the
clauses have been approved by the competent authority or established unilaterally by the supplier of
goods or services without the consumer having a chance to change its content substantially.’
company.257 The hotel company provides privileges for the affiliation of members to
such service, which enables them to exchange or negotiate their right of use to the
apartments (units) or houses with a third party.
Note that the right refers to the use of immovable property rather than to
ownership. There is not a property right but a right of use of the property for a
specific period of time. For example, all owners of condominiums only have the
right of use of the property and not ownership, and such right remains only up to the
time fixed in the contract.
The timesharing is not limited only to a service and/or accommodation provided
to the consumer traveller but also extends to an investment service. This leads to a
legal discussion on whether it is solely a contract of service or a sub-category of the
contract of accommodation, which by nature includes services.258
The main characteristics of this type of contract are requiring long-term delivery
of services and requiring continuing services of various kinds such as parking space,
restaurant, wellness centre. The services often are provided by a wide range of third
parties, meaning other subcontracts are included within the main contract.
Despite the growing activity on timesharing contracts in Brazil, there is a lack of
certainty mainly because there is no specific statute about it. Therefore, the courts
apply the general contractual law through the Consumer Defence Code. As men-
tioned, if appropriate and necessary, they also apply Decree 7.381/10 or any other
norm, in combination with Article 7 of the CDC.
Of great importance is how sellers have combined marketing and trade practices.
It will determine the way in which courts can challenge the validity of a contract by
means of their interpretation on what is a fair or an unfair commercial practice. This
is because usually the consumer is invited to attend a business party, where he or she
is offered alcoholic beverages, and the contract is signed in an environment where
success in convincing the consumer is attainable and there are videos and games.
According to the doctrine, it is an aggressive marketing practice that exaggerates the
quality of goods or services in order to obtain from the consumer an unreflecting
attitude or the mere wish to do as others do. As a result, the courts have applied
Article 49 of the CDC, in which the consumer has the right of withdrawal in view of
the fact that the contract was performed away from the business premises, the
so-called off-premises contract.259
In this context, courts have recognised the abusive marketing practices used by
the seller, which cause an imbalance in the relationship between the parties. The
chosen method of selling is unfair where on the one hand the company highlights the
great qualities of the business using experts and whilst in a favourable and seducing
257
Decree 7.381, 2010, Art 28 § 1: the supplier shall be a hotel service provider.
258
Scartezzini Guimarães (2010), p. 79/84. This author emphasises that although the contract of
time sharing is not included in the category of a contract of accommodation, in particular cases it
may be similar to it.
259
Marcelino (2003), p. 748.
environment; on the other side, the consumer, after long hours of watching appealing
videos and listening to fancy explanations, had not have sufficient time to reflect on
the offer.260 That practice increases the vulnerability of the consumer, exploiting
him/her in the situation.
Another important provision applied to timeshare contracts is found in Article
53 of the CDC. It renders null and void those clauses that provide for the retention of
the entire payment by the supplier if the consumer fails to pay one or more
instalments. Because of the lack of clarity as to what is covered or should be covered
by the entire payment, some suppliers include in the contract a clause permitting the
retention of 90% of the entire consumer payment. They argue that the CDC under
Article 53 only forbids retention of the entire payment, not part of it.
As a result, the courts reacted by stating that Article 53 shall be interpreted in
harmony with other rules, including those from the Civil Code261 limiting the
amount of compensatory fine.262
Concerning the compensatory fine in case the consumer fails to pay an instalment,
the most effective provision is found in Article 52 § 1, which limits the amount of
compensatory fine to a maximum of 2% of the amount of each instalment. Although
the main content of Article 52 is addressed to credit and financial services, authors
say that the courts have enlarged the interpretation of such limit in order to cover all
kinds of contracts of consumption. The limitation of 2% is valid not only for credit
and financial services but also for any kind of contract of consumption.263
Moreover, the consumer has the right to pay his or her duties in advance before
the end of the contract. The payment may be entirely or partially settled. The
payment shall include the proportional deduction of interest and other expenses.264
The similarity of the timeshare contract with other contracts of consumption is
quite close if liability is referred to. This is because the contract involves a wide
range of third parties, which are providers of services, meaning that all of them will
be jointly liable for material or immaterial damages caused by their own conduct.265
Any other rule, such as Article 18 of DN 378/97, which sets forth subsidiary liability,
has no effect at all.266
260
TJRS Ap.598021970/RS, j.1998.
261
Act 10.406, 2002, Art 408 to 416.
262
STJ REsp 302.520/MG, j.2003.
263
264
Act 8.078, 1990, Art 52 § 2.
265
Idem, Art 7, sole paragraph, and Arts 18, 25 § 1.
266
2.4.5 Contract of Tourism
The doctrine asserts that a contract of tourism is for the sale of ‘tourist package’, and
the obligation to produce a result is based on the contractual relationship. Liability
lies with everyone in the chain, meaning that whether they are national or interna-
tional suppliers, everyone will be jointly liable for the performance of the con-
tract.267 The main characteristic of this contract is the chain of services, such as
carriage of passenger, accommodation and eventually other services such as tours,
exhibitions, sightseeing and the like, for an inclusive price. Herein, ‘tourist package’
and ‘travel package’ and ‘package travel’ are used synonymously.
The most obvious point is that ‘tourist package’ is any prearranged combination
of services put together by a supplier, tailored to a specific person or not, and offered
for sale at one price.
Authors draw attention to the divergences in opinion on the classification of travel
and tourism contracts, which have emerged because of the arrival of the travel and
tourism sector. Amongst these, the theory between combined and single components
has dominated among legal experts and practitioners in understanding the legal
framework.
Where the single components are purchased by the traveller, such as air, rail and
road tickets; hotel booking; ticket to tourist destinations; assistance to obtain visa or
any other documents through the travel and tourism agency or even from the supplier
(the hotel or air company), the purchase is not included in the concept of contract of
tourism. Differently, in the EU, the components of a contract, whether single or
combined, are not crucial to determining the law applicable.
Under Brazilian law, the contract may be a contract of carriage, a contract of
accommodation or any other service contracts rather than a contract of tourism.268
Interestingly, a contract that involves maritime transport such as cruise might be
classified under a contract of tourism. The supplier is committed to carrying the
passenger according to a particular itinerary for some days, providing accommoda-
tion, meals and entertainment all-inclusive.269 It includes inland waterways because
cruises may also offer packages that include crossing cities through rivers.
As mentioned, under Brazilian civil law, there are innominate contracts not
particularly regulated by the Civil Code.270 With the exception of general clauses,
which ought to be followed as standardised clauses, there is no formal legal
arrangement required by the Civil Code or a particular statute in order for these
contracts to be performed by the parties. In this regard, the contract of tourism is an
innominate contract not particularly regulated by law because it falls under the scope
of general contractual law where the CDC applies.
267
Atheniense (2002), pp. 39–40.
268
269
Idem, p. 324.
270
The so-called in Brazilian Portuguese: ‘Contratos atípicos’ (CC Art 425).
The Tourism National Statute is outside the area of general contractual law,
meaning that the Statute did not set up contractual provisions in this regard, except
as already pointed out by Decree 7.381/10, which regulates de Statute and expressly
set forth in its Article 32 few provisions on the extent of the contract of services
offered by tourism agencies. Consequently, the enforcement of the Decree aims
particularly at protecting consumers. The Decree shall apply only if it is of benefit to
the consumer, in combination with Article 7 of the CDC.
The Article 28 (I) of the Tourism Statute that refers to ‘package travel’ is
inaccurate. It is not accurately preordained ‘package travel’ as a combination in a
logical way, because it did not relate exclusively to its general meaning or legal
concept. On the contrary, it attempts to underlie the classification under the chapter
‘Tourist carriers’ by classifying four divisions that are (1) package travel (. . .).
(2) local tour (. . .). (3) transfer (. . .) and (4) special (. . .).271 According to this
provision, package travel is the itinerary conducted at the municipal level, intercity,
interstate, or international, including in addition to transport, the accommodation
and other tourist services such as visit to the tourist sites, food and so on. This
definition insufficiently describes or stands for the ‘package travel’ as a combination
or prearranged combination of tourist services as a coordinated choice. Rather, it is
limited solely to the element ‘which include, in addition to transport’ that automat-
ically excludes any combination of package such as accommodation or tours, which
not include transport.
Moreover, the term ‘package travel’ appears three times in the provisions of the
Tourism Statute. Decree 7.381/10, on the other hand, lacks any discernible definition
on this concept. The first reference in the Tourism Statute, Article 32, sets forth that
contracts relating to tourist services offered by a travel agency shall inform of (. . .)
the companies and ventures included in the ‘package travel’. The second is found in
Article 33, which specifies that ‘package travel’ services offered by travel agencies
shall include the name, address and tax number of the suppliers. Finally, Article
41 adds that cruise or river roadmaps, rail and road, as well as its variations made by
sellers who sell ‘package travel’, must be presented to the Ministry of Tourism,
taking into account the competencies of public agencies and other federal adminis-
tration bodies.
Thus, in matters relating to shaping a concept of ‘package travel’, neither the
regulation nor the Tourism Statute has developed a clear legal definition for the term
because they were designed mainly to regulate the economic activity of the supplier
rather than to establish contract law provisions for the parties.
However, even against this background, the courts have demonstrated an increas-
ing willingness to protect the consumer from non-performance or improper perfor-
mance of such a contract. Recent decisions of the Court of Appeal in Sao Paulo have
confirmed that according to the definition of ‘travel agency’ under Article 27 of the
Tourism Statute, the liability of such a seller extends to any services purchased by a
consumer, as well as services pointed by the travel agency to him or her. In matters
271
Act 11.771, 2008, Art 28.
concerning consumer relationship, the supplier’s/retailer’s/seller’s liability for

defective service is a no-fault strict liability (Articles 12 and 14 of the CDC).272
Therefore, because of a lack of precise legislation about the effects of the
combination of services offered by the seller of a package travel, the assessment is
mainly left to judges to decide on a case-by-case basis under the general legal
framework of the CDC.
As mentioned, according to the regulation, the contract offering services of
‘tourist package’ shall include sufficient data to identify ‘tourist service providers’
in the country, as well as to identify and find ‘tourist service providers’ located in
foreign countries.273 This provision also meets the duty set forth by another provi-
sion that regulates the CDC. It concerns electronic commerce and requires that
electronic sites used to offer or perform contracts of consumption shall disclose in
a prominent way the following: (1) information on the name of the company
(including the national number of the person whether physical or juristic); (2) phys-
ical (local) and electronic address; (3) essential characteristics of the goods or
services, including eventual risks to the health and safety of consumers; (4) price
discrimination on differentiation between any additional costs such as delivery and
insurance; (5) sufficient condition for the offer, including alternative ways of
payment, availability of the stock in trade, time in which and mode by which the
service will be executed or the product will be delivered; and (6) clear and prominent
information on eventual restriction of the offer.274
It turns out that one of the significant aspects of those contracts is the offer
(oferta). The offer shall include the pre-contractual information duties. In particular,
it is the information that a business ought to provide to the consumer before
concluding the contract. The tourism agency must provide such information. But
third parties, which are usually located in another state, city or even another country,
will provide the tourist service. This means that other subcontracts are included
within the main contract, and this peculiarity in addressing different suppliers is the
key aspect of the contract of tourism.275
In Brazil, the pre-contractual information duties are obligations that fall within the
scope of the Civil Code276 and the Consumer Defence Code.277 The remedy that
meets the consumer traveller’s interest is found in the CDC, which carries a range of
criminal responsibilities for the seller, which may arise from abusive practices in the
contractual consumer relationship.
272
TJSP Ap.9055447-05.2009.8.26.0000/SP, j.2012.
273
Decree 7.381, 2010, Art 33: The services of ‘tourist package’ offered by tourism agencies shall
include the name, address and tax number of the suppliers. Sole paragraph: the tourism agency shall
provide sufficient data to identify and find the tourist services providers located in foreign countries.
274
Decree 7.962, 2013, Art 2, I, II, III, IV, V, VI.
275
Decree 7.381, 2010, Art 33.
276
Act 10.406, 2002, Art 427 to 435.
277
Act 8.078, 1990, Art 20, 30 to 35.
The question is how to adjust the legal limits of the information duty, whereas
there is a difference between pre-contractual information duties that includes adver-
tising and pre-contractual information duties that does not include advertising.278
Over the years, companies have worked hard to understand what determines con-
sumers’ buying decisions. The purpose is to understand what induces people into
buying more of companies’ products. Therefore, in a common sense, the major
objective of advertising is not to convey information but to shape perceptions.
Whilst the first mode, information including advertising, advertises the good or
service using marketing techniques to convince consumers of the qualities of the
good or service, the second mode, information without advertising, discloses all the
necessary terms and conditions of the offer that are essential to perform the contract.
Article 35 of the CDC provides the remedy for these two different modes of
advertising in a unitary approach. However, the provisions of the CDC on criminal
offences have a separate approach for each of them. That is to say, Article 66 protects
all consumers who received pre-contractual information without advertising, whilst
Articles 67, 68 and 69 refer to misleading information in those that include
advertising.279
Consequently, when advertising, if the information duty carries misleading and
unfair advertising that encourages consumers by any reason, thus exploiting their
vulnerability in the market, the seller may face criminal liability under Articles
67, 68 and 69 of the CDC.
When the seller provides essential information280 without advertising, there is no
problem. However, if the supplier does not comply with the essential information, he
or she shall suffer the effect of civil liability under Article 35 and/or criminal liability
under Article 66 of the CDC.
With regard to criminal sanctions, there is no difference. Criminal sanctions do
not differ significantly. Information duties that include advertising (CDC Article 67)
and those that do not include advertising (Article 66) receive the same sanction:
3 months to 1 year of imprisonment and a fine. The highest sanction for
non-compliance with the information duties is 6 months to 2 years of imprisonment
and a fine (Article 68).
Another significant point is found in Article 20 of the CDC concerning the offer
and information duty. The article lists three remedies under the heading ‘Liability on
Defect of Good or Service’. The supplier is liable for the difference between the
service acquired by the consumer and the service advertised. In such a case, the
consumer traveller may choose between (1) the re-execution of the service without
additional costs, whenever suitable; (2) the restitution of money paid, updated on a
278
Rocha (2010), p. 83.
279
Idem, p. 63.
280
Act 8.078, 1990, Art 31. Note: requires precise and comprehensive data on products and
services’ characteristics such as: quality, quantity, composition, price, warranty, period of validity
and place of origin, amongst other data, as well as the risks of failure to which the consumer’s health
and safety are exposed to.
daily basis, and compensation for personal injury; and (3) proportional price
reduction.
In this regard, the Court of Appeal of Sao Paulo held that the consumer who
bought a package travel of a cruise to later figure out that the service provided did not
meet the quality as described in the brochure and in the contract shall get a
proportional price reduction. The court applied Article 14, which refers to insuffi-
cient or inadequate information, and the remedy prescribed by Article 20 mentioned
above.281
Thus, when there is an incompatibility between the content of the offer and the
advertising of the service, the contractual clauses of the contract are voidable on
account of the information defect. The remedies available to the consumer traveller
are the same as for quality defect. That is to say, the remedy for service defects and
quality defects are identical.
From the perspective of the seller, there is a tying effect, meaning an offer that is
precise ties the seller to its terms, which ought to be enforced against him/her. The
seller is obliged to fulfil all the terms of his/her offer, which is a precondition for the
contract.282 Therefore, in the so-called public offer, which involves an indeterminate
class of people, if the seller intends to be obliged with regard to the limit of the
number of products or the capacity of the services offered, the seller shall say
expressly the quantity that he/she is able to provide through the offer.
In this context, if a tourism agency offers to the public ‘tourist packages’ set up to
travel to the Baltic Sea, the agency shall point out in the offer and advertising how
many packages they are able to cover within the terms of the offer and/or the time
limit for that. This is an important piece of information since the offer ties the seller
to the terms of the contract.
The discussion then focuses on the understanding of the phrase ‘in the limit of the
units offered’ inasmuch as such phrase is broad rather than indicates a precise
number of goods or services offered. Obviously, if the quantity is not accurately
stated, the consumer may presume that the good or service is sufficiently available.
As mentioned, the seller is tied to the offer, except in the case of force majeure
and in credit agreements, where the seller cannot escape the terms offered by
him/her.283 In addition, the supplier cannot refuse a consumer or prefer one con-
sumer to another without good reason such as safety, health, hygiene or other
exceptions created by law.284 The supplier/seller must not refuse a consumer’s
request (if he/she disposes of stock in trade). If there is reasonable proof of the
281
TJSP Ap.1268802-0/1/SP, j.2009.
282
Act 8.078, 1990, Art 30.
283
Rocha (2010), p. 83. According to the doctrine in credit agreements (such as loans) the economic
capacity of the consumer and his moral standards are essential elements to conclude the contract. In
fact, the conclusion of the contract does not depend exclusively of the supplier’s agreement, but also
on a number of factors.
284
Act 8.078, 1990, Art 39 IX. Note: in contracts of carriage the Civil Code, Art 739 states that the
carrier cannot refuse a passenger except in case required by law, or if the hygiene and health of the
person justify it.
refusal, the supplier shall face criminal liability. Act 8.137/90285 reinforces the CDC
provisions setting forth the penalties of imprisonment and fine upon those who
misjudge and discriminate against a consumer.
There are a range of legal cases about advertising where the failure to inform of
the price or to inform incorrectly is considered by the court an omission by the
supplier/seller. The supplier/seller is liable for violation of his or her pre-contractual
information duties on the ground of defect of information, misleading advertising by
omission or misleading by omission.286
2.4.6 Contract of Adhesion
A large part of contracts of consumption are designed under the contract model of
contracts of adhesion. It means that in the travel and tourism sector, contracts of
carriage of passenger, contracts of accommodation, a major part of timesharing
contracts and a substantial part of contracts of tourism are in fact contracts of
adhesion.
As it happens, the Civil Code prescribes that if the contract of adhesion includes
ambiguous or contradictory clauses, the interpretation most favourable to the adher-
ent shall be adopted.287 The CDC reinforces such a provision, which provides larger
protection as it states that contract clauses will be interpreted in such a way as is most
favourable to the consumer.288
The definition of ‘contract of adhesion’ is found in the CDC:
Art 54: A contract of adhesion is one where clauses have been approved by the competent
authority or established unilaterally by the supplier of goods or services without the
consumer having a chance to change its content substantially.
The main requirement of such a contract is the capacity of the contracting parties
rather than the willingness to perform the contract. It is a standardised agreement,
described as a contract, which terms are dictated by the predominant party in a
contractual relationship. Actually, these kind of contacts spare parties the need to
negotiate the contract terms individually. It is therefore, characterised by a lack of
negotiation because the supplier/seller dictates the clauses of the contract. The
supplier drafts the clauses one-sidedly, without the consumer agreeing to the clauses
drawn up in advance. Hence, the consumer cannot influence the content of the
285
Act 8.137, 1990, Art 7: It is crime against consumer relationships; I- to favor or prefer, without
reasonable reason a consumer or purchaser, except to the extent of the delivering systems to
consumption by distributors or retailers. (..) Sanction applied is: two to five years of imprisonment,
or payment of a fine.
286
TJSP Ap.0026318-74.2011.8.26.0506/SP, j.2014.
287
Act 10.406, 2002, Art 423.
288
Act 8.078, 1990, Art 47.
contract. Although the contract of adhesion is named a contract, it is in fact a method

of contracting or a contracting model to improve the efficiency of a business.
Party autonomy and freedom of contract are no longer the grounds for reaching
harmony and balance in contractual relationships. In consumer societies, with
distribution and production chains targeted towards a large group of people, con-
tractual relationships are less personalised. They turn to contractual standard
methods such as a contract of adhesion, where there is lack of pre-negotiation,
absence of mutual agreement on the clauses of the contract and, therefore, unilateral
option on the part of the consumer to take it or leave it, without having the capacity
to modify it accordingly.289
There is no contract of adhesion when the traveller is not compelled to follow the
terms of the contract.
A critical point about this contract concerns how suppliers and sellers determine
unilaterally the amount of penalty in case of breach of contract. The issue related to
compensatory fines (penalty) is under discussion. The seller often sets up a com-
pensation clause in case of loss or damage. The majority of the courts have asserted
that there is no penalty at all if the seller had enough time to resell goods or services.
The penalty is an exception and shall be accounted for in reasonable amount. In
addition, the penalty is imposed only outside the scope of the right of withdrawal if
either the seller or the consumer suffered loss. The supplier/seller often retains the
whole amount paid in advance by the consumer. It is a recurrent practice considered
as an abusive practice.290
Another point refers to the jurisdiction clause pre-agreed and included in a
contract of adhesion. According to Article 112 of the CPC, the judge shall assess
immediately the jurisdiction clause included in a contract of adhesion, repealing the
clause if necessary and sending the files to the defendant’s domicile jurisdiction. In
this case, the judge can act without the party’s request.
The deadline to bring a file to the court is another significant issue on contract
law. The CDC set forth two provisions on deadline with significant impact on
consumer’s rights. Literally, the provision of Article 26 (I) (II) is in detriment of
the consumer, whereas for the consumer bring a file to the court in case of failure to
perform and improper performance of the contract it established the narrow deadline
between 30 days (goods and services non-durable) and 90 days (goods and services
durable). Article 27 sets forth 5 years (accidents of consumption),291 which starts to
be counted since the damage and the author of the damage were identified.
There is an important technical discussion on this subject amongst authors, which
have opposite views. The main point regards Article 7 of the CDC, which does not
expressly exclude any other rights that may arise from other pieces of legislation.
Authors have emphasised that the courts are sensitive to the issue of a narrow
deadline, which restricts the consumer’s rights, and applying a deadline that is
289
Marques (2011), pp. 40, 41, 77.
290
TJSP Ap.01900000-41.2006.8.26.0100/SP, j.2011.
291
A defect in the good or service may cause an accident named ‘Accident of Consumption’.
most favourable to the consumer ( favor debilis), based on Article 7 of the CDC.
Therefore, the deadline for the loss of rights starts at the moment the defect is
uncovered (Article 26, § 3)292 and not 30 or 90 days counted from the time the
good is effectively delivered or the service is effectively performed.
Thus, as already mentioned, Article 26 and Article 27 have different scope.
Whilst Article 26 applies to damages resulting from failure to perform and improper
performance of the contract (30 or 90 days), Article 27 applies to accidents of
consumption (5 years).
However, in interpreting such provisions, most of the time the courts are
extending the deadline, applying Article 27. For example, it is possible to find
decisions involving contract of carriage of passenger and luggage that repeal the
narrow deadline of Article 26 (I). Instead of 30 days, the court applied Article
27, setting forth the period of 5 years for filing a claim against the air carrier that
damaged the plaintiff’s luggage (a bicycle).293 Another decision on package travel
concerning failure to perform and improper performance of the contract extended the
deadline to 5 years.294 The STJ followed the same line of reasoning as applied in
Article 27 (5 years) to a case of failure to perform the contract (the travel agent did
not deliver tickets for the World Cup).295
The issue on the deadline has been criticised. Experts have said that that courts’
decisions imposing the longer deadline have gone a bit overboard. Courts applied the
deadline under Article 27 (5 years) to cases of failure to perform and improper
performance of the contract when it should be applied only to accidents of
consumption.296
It is noteworthy that the deadline to file a claim set forth by Article 26 is too short
(30 and 90 days). Therefore, there are arguments in favour of applying the Civil
Code, which establishes a reasonable deadline of 3 years in its Article 206 § 3 (V).297
It seems more consumer-friendly.
2.5 Jurisdiction
The problem of ‘jurisdiction’ (competência) exposes the legal vulnerability of the

consumer traveller to ascertain the court when entering into litigation, mainly if the
other party is located in another country.
292
Marques (2011), p. 1246.
293
TJSP Ap.0162599-96.2008.8.26.0100/SP, j.2013: ‘It is avoidable the deadline setting forth by
Art 26 (I) of the CDC, applying to the case the deadline of Art 27 of the same code.’
294
TJSP Ap.0040849-94.2006.8.26.0554/SP, j.2013.
295
STJ REsp 435.830/RJ, j.2003.
296
297
2.5 Jurisdiction 77
In Brazil, the term jurisdiction is slightly divided into two technical meanings:
(1) the authority that an official entity is empowered to take a decision on a claim
(competência), and (2) an area (state or country) in which a particular system of laws
has authority ( jurisdição). Whilst the first is used when talking about a state or
federal law (the law applicable to a particular case); the second is used to determine
the competent court, whether special jurisdiction298 or common jurisdiction299 that
will take place by the party to file a claim in the court. But very often the usage of the
term within both Portuguese words is intertwined.300
Thus, to determine which court is competent to deal with a case, whether a court
with special jurisdiction (e.g., labor court) or a court with common jurisdiction (e.g.,
state court), a party is required to analyse the matter involved in the case, as well as
the limit of the amount in controversy. In the latter, there are also small claims
courts, not only federal301 but also state302 courts, where depending on the amount in
controversy,303 the small claims procedure will apply. It is a facultative procedure to
the party.
Taking into account that Brazil is comprised of 26 member states of the Federal
Union, plus the capital of Brasilia,304 the jurisdiction ( jurisdição) of those claims
assessed by federal courts is divided geographically into five different regions: north,
northeast, southeast, south and west central. The state courts and the capital of
Brasilia have their own geographic jurisdiction.
Whilst federal courts are competent in managing cases where the federal govern-
ment or its administrative agencies305 are involved as a party of the claim,306 the
298
Note: Special Jurisdiction is divided into; (1) Labour Courts, (2) Electoral Courts (3) Federal
Military Criminal Courts.
299
Note: Common Jurisdiction is divided into: (1) State Courts and (2) Federal Courts. Whilst the
Federal Courts are divided into ‘ordinary’ or ‘specialized’ claims the State Courts deal with claims
that are not included in the Federal Courts’ jurisdiction, which basically are divided to be assessed
by Criminal and Civil Courts.
300
STJ RO 2008/0003366-4/SP, j.2008, ‘The international competence (jurisdiction) of the Brazil-
ian authority is not limited to the analysis of Arts 88 and 89 of CPC, which contains a
non-exhaustive list.’
301
Act 10.259, 2001, Small claim courts statute applicable to federal courts.
302
Act 9.099, 1995, Small claim courts statute applicable to state courts.
303
Act 9.099, 1995, Art 3: ‘The jurisdiction of small claim courts is applicable for conciliation and
trial of civil suits of reduced complexity as it follows: I - in cases which value does not exceed forty
times the minimum wage.’
304
Acre (AC), Alagoas (AL), Amapá (AP), Amazonas (AM), Bahia (BA), Ceará (CE), Distrito
Federal (DF), Espírito Santo (ES), Goiás (GO), Maranhão (MA), Mato Grosso (MT), Mato Grosso
do Sul (MS), Minas Gerais (MG), Pará (PA), Paraíba (PB), Paraná (PR), Pernambuco (PE), Piauí
(PI), Rio de Janeiro (RJ), Rio Grande do Norte (RN), Rio Grande do Sul (RS), Rondônia (RO),
Roraima (RR), Santa Catarina (SC), São Paulo (SP), Sergipe (SE), Tocantins (TO).
305
Act 8.078, 1990, Art 93 (II).
306
Note: particular matters are also included in the jurisdiction of federal courts like: crimes
committed on board of cruises and aircrafts, crimes committed abroad, and Indians’ rights.
state courts manage issues listed in their particular statute. Nevertheless, the Federal
Constitution sets forth the division of jurisdiction between federal and state.307
Therefore, the courts must take into account the rules of jurisdiction laid down by
legislation, federal or state laws. But in the lead-up to the subject of contractual
obligations, LICC/42 is the cornerstone of the matter. It prescribes in Article 12 that
‘the Brazilian authority is competent if the defendant is domiciled in Brazil or if the
obligation shall be performed in Brazil’. In addition, Article 88 of the CPC sets forth:
‘It is competent of the Brazilian authority: I. the defendant, whatever his citizenship,
is domiciled in Brazil, II. the obligation shall be performed in Brazil, and III. the
action has its grounds on facts occurred or committed in Brazil’. However, if the
consumer brings an action to court, these provisions will not take effect if the
supplier is seated abroad. This is because on the international consumer contract,
the consumer would have access to the court but would not have success to enforce
the procedure or the result. That is vulnerability.
Article 101 (I) of the CDC sets forth that in regard to supplier’s civil liability, the
lawsuit shall be brought in the consumer’s domicile. This rule implicitly shows that
the consumer is the only party interested in claiming an action on the supplier’s civil
liability, and therefore the consumer’s domicile is strongly presumed. The experts308
and the courts309 recognise the presumption of the supremacy of the rule on
consumer’s domicile.
Matters relating to travel and tourism (B2C) embedded in a national consumer
contract or an international consumer contract are within the common jurisdiction
of state courts,310 where the supremacy of the consumer’s domicile is absolute and
leads court judgments.311
In regard to national consumer contract, for example, if a package travel arranged
by a travel agency established in Sao Paulo offering a combination of services such
as transport, accommodation and tours in Bahia is purchased by a consumer
domiciled in Rio de Janeiro, the question about jurisdiction may appear complex.
Nevertheless, in case of breach of contract, the state court of Rio de Janeiro will be
competent under Article 101 (I) of the CDC. This provision sets forth the plaintif’s
domicile (consumer) to discuss the liability of the supplier. Article 94 of the Code of
Civil Procedure sets forth the general rule of defendant’s domicile or habitual
residence if the company files the claim against the consumer.
307
Federal Constitution, 1988. Federal Courts, Art 109, State Courts, Art 125.
308
309
TJSP Ag. 7.109.165-1/Santos, j.2007.
310
Act 5.869, 1973, Art 94. The territorial jurisdiction.
311
STJ CC 128.079/MT, j.2013, TJSP Ag. 7.109.165-1/Santos, j.2007.
2.5 Jurisdiction 79
2.5.1 Enforcement of Foreign Judgments
Concerning international consumer contracts, the problem of jurisdiction reveals a

double situation, which is more complex in terms of effectiveness. That is to say, if
the supplier is abroad, his location is as an external element.312 An external element
is an alien piece under the Brazilian law system. It will be the connection between
one or more different legal systems313 that results in a concurrent jurisdiction (shared
jurisdiction). Such a situation includes contracts perfected over the Internet, where
individuals may order goods or services from sellers established in other countries.
The Internet has fundamentally changed how consumers purchase and how busi-
nesses advertise and sell their goods and services online.
In this context, for the purposes of clarity, it is important to say that concerning
international consumer contracts, under Brazilian law, there is not a special statute
on jurisdiction if an external element is located outside of the domestic legal system.
Then questions may arise in the context of how to apply two or more related legal
systems, such as: where to file a claim? Which law should apply? Will the final
decision be accepted and enforced in the foreign country? These are questions of
vital concern in international private law. About e-commerce and consumer rela-
tionship, the majority of authors in Brazil advocate a narrow interpretation that
should apply the law of the consumer’s domicile, and the claim shall be filed in
the same jurisdiction—in his/her domicile.
However, the answer is not so simple. There is no legal certainty that a judgment
in favor of a consumer domiciled in Brazil would be recognised by a foreign court. A
Brazilian judgment authorising the enforcement of a consumer award is not auto-
matically enforceable under a foreign jurisdiction. A legal decision under Brazilian
jurisdiction is a mere recognition of a right (without enforcement). To obtain
enforcement in another country, the prevailing party has to seek another procedure
(letter rogatory) through the Superior Court of Justice.314 But it is mainly based on
international and procedural cooperation between countries. Said procedure usually
delays, implies costs and has become time-barred or has been disposed of by a party.
The consumer domiciled in Brazil must hire a lawyer in another country so that he
or she would be subjected to that country’s jurisdiction and file a claim against the
supplier based on that country’s laws. Depending on the country, its legal framework
and the peculiarities of the case, only material damages are allowed to be requested,
not immaterial damages. This situation may lead to what could be another legal risk
as the consumer is then to bear the costs and expenses to be incurred abroad for the
legal case, implying different exchange rates, different legal procedures and so
on. That is barely worthwhile because of the high cost of litigating abroad.
312
The regular contract of a consumer relationship shall contain the following elements: (1) the
supplier, (2) the consumer, (3) the location of the parties, and (4) the product or service provided to
the consumer.
313
Lima (2006), pp. 84 and 85.
314
CF, 1988, Art 105 (I) (i).
Likewise, a consumer traveller domiciled in Europe or in any other non-EU

member state country may also face difficulties in enforcing a court order from
his/her country in Brazil. To enforce the judgment, the consumer traveller has to hire
a lawyer in Brazil to execute the foreign judgment in the supplier’s domicile
(jurisdiction). However, the judge will accept the case only if the party provides
an ‘exequatur’.
An ‘exequatur’ is a certificate order that accepts and recognises a foreign judg-
ment. According to Article 105 (I), ‘i’, of the Federal Constitution, the Superior
Court of Justice (STJ) is the only court that can issue such an order. The ‘exequatur’
is the result of the special procedure raised to the STJ, which is located in Brasilia
(the capital). Therefore, a consumer traveller not domiciled in Brazil may well incur
extra costs and delay in trying to enforce the foreign judgment.
As a result, some judgments will remain unpaid because of difficulties to enforce
a judgment abroad. Although there are legal tools to enforce foreign judgments, the
procedural problem found by the consumer is the lack of enforceability.
2.5.2 The Small Claims Courts in Airports
In July 2010, considering the increasing difficulties faced by air travellers in the
services provided by airlines, the ‘National Judiciary Council—CNJ’315 coordinated
the establishment of small claims courts in the airports of Rio de Janeiro, Brasilia and
Sao Paulo, followed subsequently by Mato Grosso and Minas Gerais.316
In adopting such procedure before the small claims courts, the traveller would not
need the assistance of a lawyer if the amount sought does not exceed twenty times
the minimum wage.317 If the parties reach an agreement via the small claims court
procedure, the air passenger may obtain a court order, and the air carrier shall be
obliged to pay the debt in accordance with that order.
Cases are initially filed with small claims courts situated in airports and subse-
quently sent to the Small Claims Court where the air passenger is domiciled.318 The
entire procedure should follow the simple and informal criteria stated in the pro-
visions of Act 9.099/95. However, the Act does not cover claims for material or
immaterial damages. But if a traveller has chosen to file a claim with the Small
Claims Court, he/she must have been aware that, as established by statute,319 the
315
Conselho Nacional de Justiça—CNJ (National Judiciary Council).
316
The service was set up by ‘Provimento 11’ that it is a joint regulation from the National Judiciary
Council—CNJ and the Department of Internal Affairs of the National Judiciary known in Portu-
guese as Corregedoria Nacional de Justiça.
317
Act 9.099, 1995, Art 9.
318
Provimento 11, of National Judiciary Council—CNJ (Conselho Nacional de Justiça), Art 3.
319
Act 9.099, 1995, Art 3: The jurisdiction of the Small Claim Court is applicable for conciliation
and trial of civil suits of reduced complexity as it follows: I—in cases which value does not exceed
forty times the minimum wage.
References 81
amount of compensation claim must not exceed forty times of the minimum
wage.320 In addition, as mentioned, the passenger will not need the assistance of a
lawyer for compensation claims amounting to twenty times the minimum wage.
But for claims exceeding this amount, it is mandatory to have the assistance of a
lawyer.321
As a result, the maximum amount of compensation shall not exceed the threshold
of forty times the minimum wage. Moreover, in the event that a traveller appeals
from a judgment issued by a Small Claims Court, the same court will examine the
appeal. But this time, parties would be assisted by a lawyer and the case would be
heard by three judges rather than one.322
Based on the courts’ procedural structure described so far, the Small Claims
Courts in airports are an option for the traveller who may prefer expediency and
convenience of proceedings to regular court procedings. It is a legal facility, and
some SCCs, such as one located in Brasilia, work 24 h.
The idea of placing the small claims courts in main gateway airports seems
eminently reasonable in itself. It aims to provide passengers easy access to justice.
In practical terms, the main role of these courts is to receive the claim and send it
to the small claims courts located at the jurisdiction of the consumer’s domicile,
which shall be in the same state where the airport is situated. It excludes transit
passengers (passengers on connecting flights), as well as nationals and non-nationals
residing abroad.
The small claims courts were set up to resolve claims with reduced complexity.
The liability is limited to the maximum amount of compensation already explained.
References
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Alves MF (2010) In: Morato AC, Neri PD (eds) 20 anos do Código do Consumidor. Atlas, São
Paulo
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Bandeira De Melo C (2003) Curso de Direito Administrativo. Malheiros, São Paulo
Beni MC (2001) Análise estrutural do turismo. Senac, São Paulo
320
The minimum wage in Brazil is fixed in Federal level and State level. Thus, only as reference,
according to Act 12.255/10, Act 12.282/11 and Decree 8.166/2013 the amount established in
2015 at Federal level is R$788,00. The forty minimum wages mean R$31.520,00 that is around
€9,270.58 euros in April 2015.
321
Idem, Art 9.
322
Idem, Art 41.
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São Paulo
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Mamede G (2004) Direito do Consumidor no Turismo. Atlas, São Paulo
Marcelino AO (2003) Responsabilidade civil dos hoteis e do sistema de multipropriedade
imobiliaria (Time-sharing). RT, São Paulo
Marques CL (2011) Contratos no Código de Defesa do Consumidor. O novo regime das relações
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Marques CL, Miragem B (2012) O novo direito privado e a proteção dos vulneráveis. RT, São
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Mtur B (2011/2014) Documento Referencial Turismo no Brasil 2011/2014. Ministério do Turismo,
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MTUR, Brazilian Ministry of Tourism (2006–2012) Estudo da demanda turística internacional.
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MTUR-Ministerio do Turismo. Turismo acessivel (2013) Estudo do perfil de turistas - Pessoas com
deficiencia. Ministério do Turismo, Brasilia
Nery N Jr, Nery RD (2006) Leis Civis Comentadas. RT, São Paulo
Nunes V Jr, Serrano Y (2005) Código de Defesa do Consumidor Interpretado, 2nd edn. Saraiva, São
Paulo
Pinheiro AC, Saddi J (2006) Direito, Economia e Mercados. Elsevier, Rio de Janeiro
Rocha SL (2010) A oferta no Código de Defesa do Consumidor. Editora Fórum, Belo Horizonte
Rodrigues Dos Santos TC (2009) Current criminal law issues and Brazilian justice with regard to
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Sanches Lima MG (2012) Air passengers’ rights in Brazil - Court law: overview of statutes, codes
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Scartezzini Guimarães P (2004) Vícios do produto e do serviço por qualidade, quantidade e
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turismo. Saraiva, São Paulo
STF ADIN 2.591-1/DF (2006) Confederação Nacional do Sistema Financeiro - CONSIF v
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Juleca 2003 Veículos Ltda. rel. Min. Nancy Andrighi
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Vidigal
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Versolatto. rel. Rui Rosado de Aguiar
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Rio Grande do Sul. rel. Min. Carlos Fernando Mathias
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Tourism Statistics
Chapter 3
Europe Consumer and Travel Laws
3.1 Consumer Law
Consumer law in Europe employs the original concept of integration of the European
Economic Community, and it is in line with the classical notion of free trade.1
Vulnerability, however, is not a principle. In the EU, the term vulnerability, inter
alia, stems from Directive 2005/29 on Unfair Commercial Practices. Vulnerable
persons in the EU are those individuals or groups of consumers who are vulnerable
because of their mental or physical infirmity, age or credulity. That is to say, the
meaning relates to individual characteristics rather than being a fluid notion.
3.1.1 Consumer Law Evolution
The focus of this chapter is European law, but references to Member States’ laws
may count when appropriate to the context. Behind the constant evolution and
change in the laws of the Member States, the institutions of the European Union
have an important role to play—to lead EU law towards, inter alia, creating and
enforcing consumer law.
In the beginning, integration, as governed by the Treaty of Rome, was aimed at
the achievement of a ‘common market’, to become later the ‘internal market’. To that
extent, the institutions and legal structure were primarily concentrated on the
producer of economic value (e.g., the supplier) and distribution.2
Yet, in 1957, the Treaty of Rome, which conferred rights on individuals and
originally set up the European Economic Community (EEC) of Germany, France,
Italy, Belgium, the Netherlands and Luxembourg, did not mention ‘consumer
1
Reich et al. (2014), p. 9.
2
Reich et al. (2014), p. 8.

86 3 Europe Consumer and Travel Laws
protection’ specifically. However, the treaty allowed directives to approximate

matters that directly affected the common market.
In 1975, the first Consumer Protection Programme3 from Europe had as its broad
objectives the right to safety, the right to choose, the right to be heard and the right
to be informed. It addressed issues such as consumer information, education, redress
and representation, consumer health and safety, and the legal and economic interests
of consumers. Of these issues, the health and safety of consumers was the subject of
the greatest number of directives and regulations.4
In 1988, the European Commission recognised the importance of a consumer
policy. In the report on progress towards the internal market, the EU Commission
emphasised: ‘Consumer Protection provides an example of a policy area which will
take on an enhanced importance in the completed internal market. Consumers will
need to be reassured that their interests are properly represented, that considerations
of physical and economic safety have been properly taken into account and that
access to information and justice is assured.’5
In 1989, the EU created an independent Consumer Policy Service,6 which
became DG XXIV, Directorates-General in 1995. DG no longer included numbers.
Nowadays, it is only DG. The Service issued action plans each 3 years with the scope
of reviewing and updating the framework needed to guarantee that the single market
works for consumers.
In 1992, Europe established the basis for a consumer policy through the Treaty of
European Union (Maastricht Treaty). In 1997, the Treaty of Amsterdam took it
further placing consumer policy in the shop window.7 After the Maastricht Treaty,
the legislative activity has increased markedly. There were new directives on unfair
terms in consumer contracts,8 unfair business-to-consumer commercial practices,9
consumer rights,10 timeshare,11 misleading and comparative advertising,12 package
travel,13 general product safety,14 consumer sales and guarantees.15
The last three decades were a period of active law reform in Europe. The
approach chosen by the Member States in the 1970s was welfare state oriented.
3
Annexed to Council Resolution of 14 April 1975; OJ 1975, C92/1.
4
5
COM (88) 650, pg. 2.
6
COM (90) 98.
7
8
Directive 93/13/EEC.
9
Directive 2005/29/EC.
10
Directive 2011/83/EU.
11
12
Directive 2006/114/EC repealed only Art 14 of Directive 2005/29/EC.
13
Directive 90/314/EEC, replaced by the current Directive 2015/2302/EU.
14
15
Directive 99/44/EC.
3.1 Consumer Law 87
From the very beginning of European consumer (protection) policy, there was a
tension between ‘consumer protection policy’ and ‘consumer policy’.16
Such a tension might be either a reflection in academic studies of the market
power or the use of the terms ‘consumer protection policy’ and ‘consumer policy’ as
synonyms. The difference between them is that consumer protection policy means
that the Union has to find measures to protect consumers against market abuses,
whilst consumer policy deals with the confident consumer, who has confidence in his
or her legal security wherever he/she purchases within the European Union. The
latter concept is based on the idea that consumers purchasing anywhere in the Union
should expect goods and services to be of a quality and safety, which they are
entitled to expect, and contract terms should not surprise them.17
Actually, according to the European Consumer Agenda,18 which stresses the
consumer policy, there are wording references in building on strong EU consumer
protection rules.
The Consumer Rights Directive has substantially strengthened consumer rights
harmonising a number of rules applicable to online contracts. The Directive
enlightens the right balance between a high level of consumer protection and the
competitiveness of enterprises.19 In addition, the EU acquis is based on the Func-
tioning of the European Union (TFEU), which grants consumer protection by means
of Article 114 (3). It would be surprising if any other policy adopted later would not
consider the need to protect consumers. In this context, both policies are in essence
targeting consumer protection.
Such a target is also perceived through authoritative texts, as for instance: ‘The
completion of the sectoral Legislation programme (. . .) will enable the Community
to address consumers in the knowledge that their health and safety interests are
adequately protected and that they can confidently choose between a wide range of
goods and services without undue risk.’20 Therefore, authors have pointed out that
the consumer is the weaker party for structural reasons and needs protection by legal
instruments.21 Interestingly, in the EU, the ‘confident consumer’ is the current term.
Thus, a series of directives compounds consumer law.22 Even though the direc-
tives are often the primary ones, the existence of a European consumer law is
16
Tonner and Fangerow (2012), p. 69.
17
Howells and Wilhelmsson (1997), p. 320.
18
COM (2012) 225.
19
Directive 2011/83/EU (4).
20
COM (1990) 98, 3 (iii).
21
Tonner and Fangerow (2012), p. 69.
22
To name the main ones: 2011/83/EU, the Consumer Rights Directive (that replaced the 85/577/
EEC, Doorstep Selling Directive and the 97/7/EC, the Distance Selling and off-premises contract
Directive); 2005/29/EC, the Unfair Business-to-consumer commercial practices; 2008/122/EC the
Timesharing Directive; 2008/48/EC, the Consumer Credit Directive (that replaced Directive
87/102/EEC); 2015/2302/EU on package travel and linked travel arrangement, which repealed
the 90/314/EEC Directive; 93/13/EEC, the Unfair Terms Directive; and 1999/44/EC, the Consumer
Sales.
controversial because of its narrow relation with contractual law and therefore
private (civil) law,23 where we think of private individuals having rights correlative
to the obligations.
In fact, consumer law contains both private and public law provisions. However,
Europe started to deal with private law later than 1975, when the period of consumer
protection already had initiated. The discussion of a European law of obligations
entered into the political agenda in 2001. It started through the Communication of
the Commission to the Council and the European Parliament on Contract Law,24
which, inter alia, included the establishment of a European Civil Code25 and the
promotion of principles, such as ‘Principles of European Contract Law’.26 The latter
was promoted by the Lando Commission and is known as ‘restatement’. On this
point, with the choice between a code and a restatement, the discussion in question is
how to enforce a code in common law legal systems.
In 2004, the Commission announced further measures27 signalling an optional
instrument and meaning, now, that consumer law will not compounded into a
separate consumer code.
In October 2011, the European Commission proposed an optional Common
European Sales Law (CESL). It provides for a single uniform set of fully harmonised
contract law rules, including consumer protection rules in the form of a Common
European Sales Law, which is considered a second contract law regime within the
national law of each Member State available in cross-border transactions upon a
valid agreement taken by the parties.28 However, in December 2014, the EU
Commission has included such a proposal on the list of withdrawal or modifications
of pending proposals of Annex II of the Working Programme for 2015. The reason
given is ‘Modified proposal in order to fully unleash the potential of e-commerce in
the Digital Single Market’.29
In November 2011, the EU adopted the Consumer Rights Directive. It has been
applied in all European Member States since June 2014.
23
Howells (2011), p. 173.
24
Commission of the European Communities. Communication from the Commission to the
European Parliament and the Council: On European Contract Law Brussels, 11 Jul 2001, COM
(2001) 398.
25
COM (2001) 398, 1 (2). In 1989 and 1994 the European Parliament called for work to be started
on the possibility of drawing up a common European Code of Private Law.
26
COM (2001) 398, 4.2 (55). These common principles or guidelines could however only be
applied on a voluntary basis. If this were indeed done continuously by a sufficiently large number
of legal practitioners as well as EC and national legislators, this would bring about greater
convergence in the area of European contract law.
27
COM (2004) 651, (2.3) It was nevertheless considered appropriate to examine whether
non-sector-specific-measures such as an optional instrument may be required to solve problems
in the area of European contract law.
28
COM (2011a) 635, (3) The instrument chosen for this initiative is a Regulation on an optional
Common European Sales Law.
29
COM (2014) 0910 final.
3.1 Consumer Law 89
3.1.2 Consumer Law as a Field of Law
Consumer law has become the focus of attention of law experts and authorities in
Europe. The term ‘consumer law’ has raised discussions over the years in regard to
the existing traditional contractual (civil) law.
The fact is that there is a slight distinction between general contractual (civil) law,
which is based on party autonomy, and consumer law, which by nature is more
protective. Nevertheless, the legitimacy of a separate and autonomous policy of
consumer protection in the EU is based on the grounds of Articles 12 and 169 (cur-
rently Article 167) of the Treaty on the Functioning of the European Union (TFEU)
and has been recognised as an autonomous field of legislation and policy by each
Member State.
Thus, in many European countries, consumer law has been developed as an
important field of law through consumer codes, as in France with Code de la
Consommation (1997), in Italy with Codice del consume (2005), in Spain with
Consumer Code of Catalonia (2010) and Luxembourg with Code de la
Consommation (2011). Whilst these countries have chosen to codify consumer
law separately, other countries have chosen to transpose the directives concerning
‘consumers’ into the Civil Code.30
One of the strongest arguments to justify a separate codification is that ‘consumer
law’ is strictly intertwined with public and private law, meaning a fragmentation
trend in the general contractual (civil) law. Actually, some civil law scholars would
say that ‘consumer law’ is in essence private law.31 Indeed, there is a private law
nature because it aims to protect the interests of the ‘weaker party’, the consumer, a
person created by law in a consumer relationship.
There is the need to separate consumer relationship from commercial relation-
ship. On this topic, some important directives addressing the consumer’s interests
have emerged in the EU. They established the first steps to name ‘consumer law’ a
field of law.32
Nevertheless, when the issue is the source of EU ‘consumer law’ there is no
convergence between authors. There are those who say that ‘consumer law’ is part of
‘private law’, with the capacity to influence general principles.33 On the other hand,
there are others who argue that EU consumer law is part of the European economic
law. According to the Advocate General, ‘it is true that there are significant
30
Like in Germany, on German Civil Code (BGB).
31
Schulze and Stuyck (2011), p. 26. ‘European Private Law affects and includes many sectors, one
of which has developed before the others, namely consumer law. The acquis communautaire on
the matter, which relied on wide literature and a huge number of cases emerged at national level and
tackled with accurate scientific studies and research, strengthened itself by developing a body of
rules and postulated the need to collect these rules in a systematic framework, a general Consumer
Rights Directive.’
32
Wilhelmsson, Is there a Consumer European Law? And there should be? Translated from Rome
Conference 2000 by academics from University of Rio Grande do Sul. 2005, p. 187.
33
Idem, p. 186.
differences between competition law and consumer law as regards their nature and
scope. They also pursue different aims and, indeed, the European Union legislature
has been careful to distinguish between the rules on competition applicable to
undertakings set out in Articles 101 to 106 TFEU and those aimed at protecting
consumers in Article 169 TFEU. None the less, both competition law and consumer
law fall within the sphere of Economic Law.’34
However, it is logically impossible to give full effect to two matters that are
irreconcilable with each other to the extent that the rules pursue different aims. The
concept of ‘economic law’ in the form it is used today is relatively recent. Indeed,
there is an inseparable linkage between ‘consumer law’ and ‘competition law’, but it
means that whilst ‘economic law’ becomes the law of the ‘internal market’, which
indirectly protects consumer interests,35 ‘consumer law’ directly protects consumer
interests. The two spheres are always to some extent opposite with a limited
convergence: to protect consumers directly and indirectly. Such a narrow conver-
gence is not sufficient to justify the approximation of the legal nature of ‘consumer
law’ exclusively to ‘economic law’.
The recent history of ‘economic law’ is another subject of study driving the
attention of experts and authorities worldwide. In the subset of competition or
commercial law it regards as agreements between firms, antitrust, restrictive prac-
tices, abuse of dominant positions, mergers, damages actions, cartels, state aid and so
on. The main focus is maintaining market competition by regulating anti-
competitive behaviour of companies rather than directly protecting consumers.
The effect on the protection of consumer’s interests is an indirect consequence of
the protection of competition.
As a result, ‘consumer law’ does not fall within the sphere of ‘economic law’
because although they are intertwined, they in fact carry different provisions of laws.
In terms of contracts, whilst ‘economic law’ pertains to B2B contracts, ‘consumer
law’ relates to B2C contracts.
The Consumer Rights Directive has substantially strengthened consumer rights in
particular by harmonising a number of rules applicable to online contracts and giving
light to the right balance between a high level of consumer protection and the
competitiveness of enterprises.36
3.1.3 Consumer
The definition of ‘consumer’ stems from directives that aim to protect consumers’
interests. These directives concern ‘timeshare’, ‘unfair terms in consumer contracts’,
34
OPINION of Advocate General C-59/12 (2013), (32).
35
Reich et al. (2014), p. 8.
36
Directive 2011/83/EU, (4).
3.1 Consumer Law 91
‘unfair business-to-consumer commercial practices’ and ‘consumer rights’,37 which

altogether adopted the same definition:
Consumer means any natural person who, in contracts covered by this Directive, is acting for
purposes which are outside his trade, business, craft or profession;[. . .].
The Directive on consumer rights states clearly that its provisions do not apply to
contracts that fall within the scope of the Package Travel Directive and Timeshare
and Air Passengers Transport Services, in the latter with exception of Article
8 (2) and Articles 19 and 22.
The current Directive on package travel and linked travel arrangements preferred
to entitle the traveller, not the consumer, as the person protected by law. Neverthe-
less, it does not mean that the traveller is not a consumer. The Directive accurately
explains that the majority of travellers buying packages or linked travel arrange-
ments are consumers within the meaning of Union consumer law.38
The Directive includes business travellers as members of liberal professions or
self-employed or other natural persons where they do not make travel arrangements
on the basis of a general agreement. The Directive is clear, stating that in order to
avoid confusion with the definition of the term ‘consumer’ used in other Union
legislation, persons protected under this Directive should be referred to as
‘travellers’.39
In the former Package Travel Directive, the definition of ‘consumer’ was very
different from other consumer protection directives as it implied the inclusion of
other persons such as the ‘business travellers’. But this Directive did not clarify
whether the business travellers could make travel arrangements individually or not.
The current Directive made a step further.
Notwithstanding that the consumer does not contract in a business capacity, the
difficulty is in determining when he or she acts in a business capacity, whereas a
company may purchase goods or services not for business purposes but for regular
consumption. For example, a company may buy coffee for employees or a car for
directors’ private use.
On the scope of Consumer Rights Directive, Member States may decide to extend
the application of the rules of the Directive to legal entities or to natural persons who
are not consumers within the meaning of the Directive, such as non-governmental
organisations, start-ups or small and medium-sized enterprises.40
On this point, Directive 2015/2302/EU stresses that ‘(. . .) it is not always easy to
distinguish between consumers and representatives of small businesses or profes-
sionals who book trips related to their business or profession through the same
booking channels as consumers. Such travellers often require a similar level of
37
Directive 2008/122/EC (timeshare); Directive 93/13/EEC (unfair terms in consumer contracts);
Directive 2005/29/EC (unfair business-to-consumer commercial practices); Directive 2011/83/EU
(consumer rights).
38
Directive 2015/2302/EU, Recital (7).
39
40
protection. In contrast, there are companies or organisations that make travel

arrangements on the basis of a general agreement, often concluded for numerous
travel arrangements for a specified period, for instance with a travel agency. The
latter type of travel arrangements does not require the level of protection designed for
consumers.’41 On this spot, the Directive does not apply to all business travellers but
applies only to those that do not make travel arrangements based on a general
agreement.
Consumer behaviour is the basis for several consumer protection strategies and
policies. In Europe, the law of each country is originally designed according to each
geographical location, in the extent that the directives provide a minimum standard,
which shall not prevent Member States from having rules that are more favourable to
the consumer. Nevertheless, the EU has sought to develop the mechanism of
cohesion, which changes reliance on the minimum standard principle to the full
harmonisation principle, as further explained.
3.1.3.1 Consumer Traveller Vulnerability
For the purpose of clarity, it is important to say that under EU law, there is not a
single definition of the concept ‘consumer traveller’. The term is never found in the
EU legislation. The closest provision that links travellers and consumers together
stems from the Directive on package and linked travel arrangements. On its Recital
(7), the Directive sharply clarified that ‘The majority of travellers buying packages or
linked travel arrangements are consumers within the meaning of Union consumer
law’.
The Directive on consumer rights that leads the legal notion of consumer,
explicitly excluded other legislation,42 such as the Directive on package travel and
linked travel arrangements. Even excluding the package travel contracts and linked
travel arrangements the remedies of the Directive on consumer rights are significa-
tive concerning general consumer protection law.
Taking into account that the EU law asserted its authority over the concept of
traveller, an obvious question lands at the forefront: why was traveller included as an
identifiable group of consumers? One of the reasonable answers is the linkage
between the notions of consumer and vulnerability. If the consumer, in general, is
always in a weaker bargaining position than the supplier, there is all the more reason
to pay attention to the traveller, who usually is out of his or her domicile and
jurisdiction when he/she is consuming goods and services.
The EU rules aim to ensure that, as the most vulnerable party to the contract,
especially when travelling, consumers enjoy a general set of rights that limit
41
42
Directive 2011/83/EU, Art 3, 3 (g).
3.1 Consumer Law 93
problems and guarantee acceptable service throughout the EU. When buying pack-
age holidays, they benefit from extra protection.43
3.1.3.2 The Average Consumer and Vulnerability
At first sight, there seems to be nothing unreasonable about applying the notion of
vulnerability to the traveller. Despite a modern approach on vulnerable consumer,
vulnerability is not a widely understood concept outside the field of behavioral
sciences. ‘Vulnerability’ is difficult to define as a single legal concept, and there
are some criticisms concerning the appropriate definition that every study brings
forth.
In the EU, in addition to the Directive on Unfair Commercial Practices, which is
the cornerstone of the issue, few Directives expressly tackle vulnerable consumers.44
The notion of vulnerability confronted with the concept of average consumer stems
from the Directive on Unfair Commercial Practices,45 where such confrontation
resulted in significant misconception as further explained. Beside the concept of the
average consumer, the Directive stresses three characteristics of identifiable groups
of consumers particularly vulnerable in the market as follows:
Recital (18): (. . .) this Directive take as a benchmark the average consumer, who is
reasonable well informed and reasonable observant and circumspect, taking into account
social, cultural and linguistic factors, as interpreted by the Court of Justice, but also contains
provisions aimed at preventing the exploitation of consumers whose characteristics make
them particularly vulnerable to unfair commercial practices.
Art 5 (3): Commercial practices which are likely to materially distort the economic
behavior only of a clearly identifiable group of consumers who are particularly vulner-
able to the practice or the underlying product because of their mental or physical infirmity,
age or credulity in a way which the trader could reasonably be expected to foresee, shall be
assessed from the perspective of the average member of that group.
Although the ‘average consumer’ is not defined expressly in the Directive on

Unfair Commercial Practices, the recital of the Directive refers to a definition, as
interpreted by the European Court of Justice.46 Until now, European law and
European policy are based on the concept of ‘average consumer’. According to
the EU case law, in deciding whether a traders’ practice is misleading or not for a
consumer, the judge has to apply an objective legal criterion, in the form of what is
now known as the ‘average consumer standard’. 47
Thus, under the EU law, two significant legal meanings emerged over the years:
the average consumer and the vulnerable consumer. Whilst on one hand it might be
43
COM (2013c) 513, (2).
44
Directive 2011/83/EU, Recital (34); Directive 2001/95/EC, Recital (8); Directive 2006/123/EC,
Recital (41).
45
46
ECJ 16.07.1998 C-210/96 and ECJ 16.09.1999, C-220/98.
47
Opinion ECCG (2013), p. 8.
feasible to locate the concept of ‘average consumer’ amongst those who are confi-
dent and empowered by appropriate policy action,48 on the other hand the notion of
‘vulnerability’ shapes the notion of ‘vulnerable consumer’. It mainly means a group
of consumers who are vulnerable because of their specific characteristics such as
(mental or physical) infirmity (children, youth or elderly), age or credulity (state of
mind, cognitive, emotional).
Notwithstanding such differences set forth by law, the concept of ‘average
consumer’ does not fit with the fundamental right of ‘consumer protection’,49
whereas by nature protection is needed if there is an unequal relationship between
two parties—because the consumer does not have equal bargaining power mainly
owing to difficulties in obtaining accurate information. It is hard to accept that
someone who is well informed, observant, confident and empowered needs
protection.
Actually, the imbalance justifies the intervention of the law in favour of the
weaker party. The weaker and more dependent party needs to be protected against
significant contractual imbalances, whatever their legal or economic statuses are.
Furthermore, as mentioned, a person who is observant, circumspect and confident
does not fit with the notion of the weaker party in a contractual relation.
The Brussels I Regulation, for example, enacted before the Directive on Unfair
Commercial Practices, implies that every consumer is weaker in consumer con-
tracts.50 But matters of intervention aside, the notion of average consumer and the
issue of vulnerability suddenly demanded more explanation.
European consumer organisations have raised questions about the prevalent
notion of the average consumer, claiming that as it is stands today, it puts too
much responsibility on consumers’ shoulders. Moreover, recent surveys indicate that
consumers are often less informed and assertive than policymakers assume and show
that there are significant national differences in consumer empowerment across the
EU.51
As a result, a recent resolution from the European Parliament points out that ‘as
the EU must focus on effectively protecting the rights of all consumers, the notion of
an “average consumer” lacks the flexibility needed to adapt to specific cases and
sometimes does not correspond to real-life situations’.52
The EU Consumer Policy Strategy adopted by the European Commission for the
years 2007–2013 sets as its main objectives the following: to empower the 493 mil-
lion EU consumers, to enhance their welfare and to protect them effectively. The
Strategy defines an empowered consumer as a consumer with ‘real choices,
48
COM (2012) 225 final, (1).
49
Oj 2010/C 83/391. Charter of Fundamental Rights of the European Union, Art 38.
50
Regulation (EC) 44, 2001, Recital (13): ‘In relation to insurance, consumer contracts and
employment, the weaker party should be protected by rules of jurisdiction more favourable to
his interests than the general rules provide for.’
51
SEC 469 final (2011).
52
Resolution 2011/2272 (INI), P7_TA(2012)0209, p. 4 (3).
3.1 Consumer Law 95
accurate information, market transparency, and the confidence that comes from
effective protection and solid rights’. Empowerment comes both from the capacity
of consumers themselves and the strength of the infrastructural framework (regula-
tions, public authorities, consumer organisations, etc.)53 However, even under the
argument that the law provides empowerment, such argument mixes the understand-
ing between the characteristic of the person (observant and circumspect) and an
external factor (provided by law).
It remains unclear whether the group of vulnerable consumers, who shall
naturally be protected by their weaker consumer position, outside the scope of
infirmity, age or credulity will be protected in the case of commercial practices are
assessed using the criterion of the ‘average consumer’, who is ‘reasonably well
informed and reasonably observant and circumspect’.54 Although this sounds
strange from the perspective of principles of consumer law, the notion of average
consumer is facing tension in the EU. Whilst there are studies that investigate how
informed and assertive consumers are in practice, and which socio-demographic
characteristics may indicate more vulnerability than average,55 other studies appro-
priately excluded the concept of the average consumer from the tourism service.56
In this context, the transposition of the Directive on Unfair Commercial Practices
by some Member States revealed that over the years, the issue has been in process.
There are other characteristics and situations that should be added to the concept of
vulnerability.
Studies on the transposition of EU law57 have disclosed a broader comprehension
of the term vulnerability than that predicted by EU law. For example, German law
added two characteristics to those found in the Directive on Unfair Commercial
Practices, like fear and under pressure (situations where consumers are in fear or
under pressure).58 Moreover, consumer groups in special need of protection, such as
fellow citizens who are linguistically or commercially inexperienced, in Germany
are protected from the exploitation of their inexperience.59
The Spanish law, in addition to those characteristics found in the Directive,
contains various regional statutes with similar characteristics of the vulnerable
consumer, as for instance in Valencia (immigrants and persons who are temporarily
displaced from their usual place of residence),60 in Aragon (adults, pregnant women,
53
TNS Opinion & Social, Special Eurobarometer n 342 (2011), p. 5.
54
IP/A/IMCO/NT/2008-16 (2008), p. 30.
55
SEC 469 final (2011), p. 10.
56
LONDON Economics (2009), p. 19.
57
IP/A/IMCO/NT/2011-20 (2012).
58
§ 4 N 2 UWG (German Unfair Competition Act). Gesetz gegen den unlauteren Wettbewerb.
59
Bundestagsdrucksache, 15/1487, S. 17.
60
Act 1/2011, Art 6, Consumer Statute of Valencia, referred in IP/A/IMCO/NT/2011-20
(2012), p. 61.
consumers socially or economically weak),61 in Asturias (adults, pregnant women,

immigrants, and socially and economically weak),62 in Cantabria (adults, pregnant
women, unemployed, immigrants and persons who are temporarily displaced from
their usual place of residence),63 in Catalonia (any person in inferior situation or
special weaknesses),64 in Castile-La Mancha (any person in inferior situation,
subordination, weaknesses; pregnant women; unaccompanied women with family
cares and low income; women affected by the process of marginalisation; immi-
grants; and socially and economically weak),65 in Navarre (any person in inferior
situations, subordination, weaknesses; immigrants; and the like).66
As already noted, EU law primarily asserts the definition of ‘vulnerable’, which
covers exclusively groups of persons with particular infirmity, age or credulity,
followed by the Directive on consumer rights67 and the Directive on general product
safety,68 which are in line with the Directive on Unfair Commercial Practices. But
the word ‘vulnerable’ is found also in a wide sense, such as in the Directive on
services in the internal market, which emphasises ‘the protection of minors and
vulnerable adults’.69
Overall, nowadays authors emphasise that it is fair to assume that the vulnerable
consumer concept stands side by side with the informed consumer concept.70
61
Act 16/2006, Art 5, Consumer Statute of Aragon, referred in IP/A/IMCO/NT/2011-20
(2012), p. 61.
62
Act 11/2002, Art 5, Consumer Statute of Asturias, referred in IP/A/IMCO/NT/2011-20
(2012), p. 61.
63
Act 1/2006, Art 4, Consumer Statute of Cantabria, referred in IP/A/IMCO/NT/2011-20
(2012), p. 61.
64
Act 22/2010 Art 112-2c, Consumer Code of Catalonia, referred in IP/A/IMCO/NT/2011-20
(2012), p. 61.
65
Act 11/2005 Art 3, Consumer Statute of Castile-La Mancha, referred in IP/A/IMCO/NT/2011-20
(2012), p. 61.
66
Act 07/2006 Art 3, Consumer Statute of Navarre, referred in IP/A/IMCO/NT/2011-20
(2012), p. 61.
67
Directive 2011/83/EU, Recital (34): ‘In providing that information, the trader should take into
account the specific needs of consumers who are particularly vulnerable because of their mental,
physical or psychological infirmity, age or credulity in a way which the trader could reasonably be
expected to foresee.’
68
Directive 2001/95/EC, Recital (8): ‘(. . .) in particular the categories of consumers which can be
particularly vulnerable to the risks posed by the products under consideration, in particular
children and the elderly’.
69
Directive 2006/123/EC, Recital (41): ‘(. . .) in particular, issues relating to human dignity, the
protection of minors and vulnerable adults and animal welfare. Similarly, the concept of public
security includes issues of public safety’.
70
Reich et al. (2014), p. 48.
3.1 Consumer Law 97
3.1.3.3 Vulnerability, Detriment and the Disadvantaged Consumer
Apart from the concept of average consumer, three notions have been particularly
noteworthy in the European law and in the studies conducted by the EU:
(a) vulnerability or the vulnerable consumer, (b) detriment, and (c) the disadvan-
taged consumer.
Whilst both ‘vulnerability’ and ‘disadvantaged’ are used in different contexts,
which sometimes indicate situations and sometimes assign personal characteris-
tics,71 on the other hand the word ‘detriment‘ is used only to show a result of an
act causing harm or damage72 to the person protected by law. For example, a
contractual term not negotiated may cause a significant imbalance in the parties’
rights, to the detriment of the consumer,73 or comparative advertising should include
criteria of objective comparison of the features of goods and services to determine
which practices relating to comparative advertising may distort competition and may
be detrimental to competitors, having therefore an adverse effect on consumer
choice.74 Consequently, the word ‘detriment’ has more practical consequences in
terms of assertiveness in consumer law than ‘vulnerability’ and ‘disadvantaged’. But
the assertiveness of the term ‘detriment’ shall not reduce the importance of the term
‘vulnerability’, which must be, and nowadays it is, intensively worked out.
Though vulnerability is difficult to define, it can arise from limitations in mental
or physical capacity as much as from the financial circumstances in which a
consumer finds himself/herself. This suggests that it would be rather difficult to
come up with a common set of legal rules to tackle consumer vulnerability at the EU
level. In particular, it would seem difficult to design specific legal rules dealing with
instances of vulnerability because of the fluidity of the concept.75
Furthermore, in regard to the disadvantaged person, studies have emphasised that
positioning consumers as disadvantaged simply because they belong to a socio-
economic group does not fit with actual behavior, nor can it lead to adequate
recommendations on consumer empowerment. Research should focus on the con-
cept of vulnerable consumers rather than disadvantaged consumers.76
71
COM (2012) 225 final, (3.2): ‘(. . .) The current context may also exacerbate the disadvantaged
situation of vulnerable consumers’.
72
Oxford (2005).
73
Directive 93/13/EEC, Art 3 (1).
74
Directive 2006/114/EC, Recital (9).
75
IP/A/IMCO/NT/2011-20 (2012), p. 24. ‘Compilation of Briefing Papers on Consumer
Vulnerability.’
76
TNS Opinion & Social, Special Eurobarometer n 342 (2011), p. 6.
3.1.3.4 Vulnerability and the Vulnerable Consumer
Focusing on vulnerability and the vulnerable consumer, experts have pointed out
that consumers in vulnerable positions are not vulnerable consumers, stressing that
the issue goes deeper than confidence, and society cannot be simply or easily divided
into vulnerable groups and the rest, considering that people’s circumstances change
and anybody can become vulnerable at any time, for example through job loss or
bereavement. They suggest looking at how to remove organisational barriers and
empower consumers in vulnerable positions.77
Over the years, there have been significant changes in the comprehension of the
concept of vulnerability in Europe that will have considerable impact on the law in
the near future. As a result, a recent resolution on strengthening the rights of
vulnerable consumers has suggested to the EU Commission that ‘the concept of
vulnerable consumers should also include consumers in a situation of vulnerability,
meaning consumers who are placed in a state of temporary powerlessness resulting
from a gap between their individual state and characteristics on the one hand, and
their external environment on the other hand, taking into account criteria such as
education, social and financial situation (for example over-indebtedness), access to
the internet, and alike. All consumers at some point in their life can become
vulnerable due to external factors, interactions with the market or because they
have difficulties in accessing and comprehending relevant consumer information
and therefore need special protection (. . .). The EU must focus on effectively
protecting the rights of all consumers, the notion of an ‘average consumer’ lacks
the flexibility needed to adapt to specific cases and sometimes does not correspond to
real-life situations.’78
What is more, the resolution suggests that the Commission should encourage
Member States to maintain constant and close analysis of social and consumer
behaviour and situations that may place certain groups or individuals in vulnerable
situations, for instance by analysing consumer claims, and to put an end to vulner-
ability through specific measures, where appropriate, to provide protection for all
consumers, regardless of ability and at whatever stage of life.79
Therefore, the issue regarding vulnerability to all consumers and consumers who
are more vulnerable than others because they belong to specific groups is not
addressed appropriately. Even few experts who disclosed the problem of the risk
linked with the notion of vulnerability hardly approach a comparison between
vulnerability in abstracto (applies to all consumers) and vulnerability in concreto
(applies to a group of consumers who are particularly vulnerable). But the pathway
to placing vulnerability with risk factors sounds appropriate as experts have pointed
out that ‘Vulnerability should be identified through understanding risk factors,
77
Stearn (2012), pp. 4, 5.
78
Resolution 2011/2272 (INI), P7_TA(2012)0209, p. 4 (D) and (3).
79
Idem, (5).
3.1 Consumer Law 99
awareness of behavioural triggers, and a recognition of the potential barriers caused

by existing systems.’80
Thus, taking into account the fluidity of vulnerability in view of the present risk of
the situation where the consumer is involved, it is impossible to put an end to
vulnerability through specific measures on individual state and characteristics, on
the one hand, and external factors, on the other. However, it is possible to reduce the
risk of the vulnerability through assertive public policy such as consumer protection
and, why not, a further consumer traveller protection. In matters of vulnerability, the
measures should focus on the contract, not on the individual himself/herself because
it is impossible to measure vulnerability in all situations in which the individual will
be involved.
In other words, it is the same with the theory of risk,81 where people are
constantly attempting to balance risk like a thermostat. The setting of the thermostat
varies from one individual to another, from one group to another, from one culture to
another. All individuals become accustomed to some acceptable level of risk, where
in matter of travelling the travel anxiety is associated with the perception of safety
and intentions to travel. There are numerous types of perceived risks associated with
tourist destinations, air travel and decision-making processes of a destination choice
that impact consumers’ vulnerability.
The balance risk is noticed as simple common sense of safety mechanisms
addressed by policy and regulation. Both are able to attenuate (not eliminate) the
consumer’s vulnerability risk, for example, reduction of risk by means of appropriate
information, right to have money back if something goes wrong, guarantee of
compensation, appropriate consumer jurisdiction choice and so on. However,
owing to some particular characteristics of some groups of consumers, who are by
nature more vulnerable than others, the law should give special care in enhancing
their rights concerning equality.
There is a need to reduce the risk and uncertainty involved in purchasing goods
and services when travelling. Such a need may be satisfied if a destination offers a
high, reasonable or appropriate level of safety and quality concerning consumer
protection. The result would reduce but not eliminate the risk of consumer vulner-
ability in a single market.
3.1.4 Traveller and Business Traveller
The traveller’s definition was set forth in Directive 2015/2302/EU, Article 3 (6):
‘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 Directive; [. . .].
80
Stearn (2012), p. 11.
81
Reisinger and Mavondo (2006).
The scope of the Directive is found in Article 2 (1):

This directive applies to packages offered for sale or sold by traders to travellers and to
linked travel arrangements facilitated by traders for travellers.
This is the first time that a definition of traveller has been made in the EU
legislation. It leads to the conclusion that under EU law, travellers are only those
who conclude contracts on package travel or linked travel arrangements. The level of
the protection between packages and linked travel arrangements is another point82 as
the person with a legal status to take those travel services is indeed the traveller.
Regarding vulnerability, the current Directive has made no progress. It replicated
the notion that vulnerable individuals are those whose characteristics make them
particularly vulnerable such as age or physical infirmity. It says that the trader should
take into account the specific needs of travellers who are particularly vulnerable
because of their age or physical infirmity, which the trader could reasonably
foresee.83
Curiously, the legal definition of traveller in the Directive does not contemplate
the term ‘natural person’. It states ‘any person’ as traveller, which could bring some
distortion. Nevertheless, it is a minor problem as Recital (7) sets forth:
this Directive should apply to business travellers, including members of liberal professions,
or self-employed or other natural persons, where they do not make travel arrangements on
the basis of a general agreement. In order to avoid confusion with the definition of the term
‘consumer’ used in other Union legislation, persons protected under this Directive should be
referred to as ‘travellers’.
Therefore, it is possible to imply by inference or association that the traveller in

general is a natural person.
The borderline between what is consumer and what is traveller is not always
clear-cut. A series of debates over the years has led to the startling revelation that
European law’s concept of consumer in the travel and tourism and related sectors has
not always been as clear as expected.
The adoption of the first PTD—Package Travel Directive 90/314/EEC on pack-
age travel—in 1990 created important rights for Europeans purchasing holiday
packages and even business travel packages, but the Directive neither provided a
harmonised definition of consumer in line with other consumer protection directives
nor acknowledged a definition for the traveller.
The notion of traveller was introduced in international law by the Convention on
Travel Contracts (CCV) of 1970. However, it was not incorporated by successive
EU legislation.84 It read:
Art 1 (7) ‘Traveller’ means any person who benefits from an undertaking defined in
paragraph 2 or 3, whether the contract is concluded or the price paid by himself or by
another person for him.
82
Directive 2015/2302/EU, Recital (9). See on this book 3.4.5. Travel Contract.
83
84
CCV (1970). Note: In the EU only Italy still remains a signee of this convention.
3.1 Consumer Law 101
Although the definition of traveller did not exist at that time in European law,
some Member States included the term traveller in their codes, such as Germany in
the Bürgerliches Gesetzbuch (BGB), Netherlands in the Burgerlijk Wetboek (BW),
at the time of implementing the PTD. The term traveller was adopted also by Austria,
Estonia and Sweden. France, Luxembourg, and Slovakia preferred the term ‘pur-
chaser’. Other countries such as Denmark, Czech Republic and Poland used ‘cus-
tomer’, whilst Latvia and Portugal took ‘client’ and Lithuania, ‘tourist’. Only a few
Member States used the term consumer, such as Ireland, Cyprus, Greece, Malta,
Spain and the United Kingdom.85
The Directive on the common system of value added tax86 did not provide a
definition for traveller, but it tackled the term traveller mainly in relation to exception
from tax in many of its provisions. In addition, other documents, such as the
resolution on the functioning and application of established rights of people travel-
ling by air, emphasise that everything should run safely and smoothly for the air
passenger and other travellers before, during and after the flight.87 Likewise, law
cases assessed by the ECJ have used passenger, consumer and traveller synony-
mously, whether in the description of the case or in the final ruling.88 This may imply
that the passenger is also a traveller, and thus the traveller needs special protection.
In 1990, the structure of the travel market was simpler than it is nowadays and the
Internet did not exist. The development of online sales and liberalisation in the
airline sector have changed the way in which consumers organise their holidays,
such consumers having led to different ways in which traders assist consumers in
customising combinations of travel services, particularly online. There was ambi-
guity in many Member States as to whether such combinations fall under the scope
of the former Directive and whether traders involved in putting together such
combinations were liable for the performance of the relevant services, especially in
the online environment, causing uncertainty for traders and consumers.89
Recently, the Court of Justice analysed the concepts of ‘traveller’ and ‘customer’
in relation to taxation and the special scheme for travel agents set forth by Directive
2006/112/EC. There were discrepancies between language versions, so that the
coexistence of the traveller-based approach and the customer-based approach leads
to double taxation and distortions of competition.90
85
Nölke-Schulte et al. (2008).
86
Directive 2006/112/EC, Art 147 (1) (a), (2), Art 307, 308, 310, 374.
87
Resolution 2011/2150 (INI), P7_TA(2012)0099, (3).
88
ECJ 13.10.2011 C-83/10, (21): ‘Three passengers on the flight in question were invited to take a
flight leaving the next day (. . .). Another traveller was offered a seat, the same day (. . .).’ ECJ
16.01.2014 C-430/13, (20): ‘(. . .) to pay compensation in respect of the costs of travellers’
repatriation and involuntary overnight stays (. . .)’ rules (1) ‘(. . .) where the detailed rules laid
down therein do not achieve the result of ensuring that the consumer is provided with an effective
guarantee of the refund of all money paid over and repatriation in the event of insolvency on the part
of the travel organiser(. . .)’.
89
COM (2013c) 512, 1. Context of the proposal. 1.2.1. Development of Internet distribution and
liberalisation in the airline sector.
90
ECJ 26.09.2013 C-189/11.
Regarding ‘business traveller’, there is no particular definition in the current

Directive on package travel and linked travel arrangements. But the Directive pro-
vides a way to infer the concept as it specifies that it only applies to business
travellers, including members of liberal professions, or the self-employed or other
natural persons insofar as they do not make travel arrangements on the basis of a
general agreement.91
Thus, the comparison between Recital (7) and Article 2 (2) (c) may possibly
create a slight confusion for the interpreter. As to the first, the Directive applies to
‘business traveller’, including members of liberal professions or self-employed or
other natural persons. As to the second, the Directive does not apply to ‘business
travel between a trader and another natural or legal person who is acting for
purposes relating to his trade, business, craft or profession’. Article 2 (2) (c) added
that it does not apply if the purchase falls into a ‘general agreement’.
Recital (7) highlighted the term ‘general agreement’ as follows:
(. . .) this directive should apply to business travellers, including members of liberal pro-
fessions, or self-employed or other natural persons where they do not make travel arrange-
ments on the basis of a general agreement.
Unfortunately, the Directive offers no particular definition of the term ‘general

agreement’. It is worthy to note the difficulties faced by the legislator in finding a
suitable solution and arriving at the term ‘general agreement’ as it was changed from
the proposal of the Directive to the text approved. Whilst the proposal of the
Directive stated ‘framework contract’,92 the current Directive set forth ‘general
agreement’ at the end. The reason was left open.
The term ‘general agreement’ is widely used in legal texts of the World Trade
Organization (WTO). According to the WTO, most of the agreements are the result
of the 1986–1994 Uruguay Round negotiations, signed at Marrakesh ministerial.
There are about 60 agreements and decisions. Negotiations since then have produced
additional legal texts. New negotiations were launched at the Doha Ministerial
Conference in November 2001. Tourism service negotiations have been included
since January 2000. The principles of trade in tourism services, as for all other
services, are contained in the General Agreement on Trade in Services (GATS).
Although it appears that the term ‘general agreement’ stems from GATS, the
relationship between parties in the contract, regulated by the Directive, has a
different scope. The directive indicates on Recital (7) that ‘there are companies or
organisations that make travel arrangements on the basis of a general agreement,
often concluded for numerous travel arrangements for a specified period, for instance
with a travel agency’. The Directive emphasised that such a ‘type of travel arrange-
ments does not require the level of protection designed for consumers’. Therefore, all
business travellers are consumers, but not all consumers are business travellers.
91
92
A7-0124/2014 (4.1) Recital (7) and COM (2013b) 512 Art 3 (6).
Although the traveller has gained a legal status, it is true that not all travellers are
under the protection of the current Directive. For example, those who take short-term
trips less than 24 h that do not include accommodation, as well as packages or linked
travel arrangements offered or facilitated occasionally and on a not-profit basis and
only to a limited group of travellers, are excluded from the scope of the Directive.93
Consequently, it seems that the criterion of assessment used to set up who is a
traveller or who is a business traveller has to be stressed. That is to say, the
identification of the parties on the contract should accurately identify the person
that may attract the person’s rights.
3.2 The Role of the Travel and Tourism Sector
Europe is one of the world’s seven continents.94 The geographical status, however, is
different from the economic and political organisation. It geographically accounts
for approximately 50 countries. The European Union is part of it, which comprises
28 Member States.95 On July 2013, Croatia was added to the European Union.
The continent covers an area of 4,381,376 km2. In 2017, with a population
estimated at 511.8 million,96 Europe is a mass market. Germany is the largest
country in population, with 81.2 million people living there, followed by France,
66.42 million.97
A survey conducted by the European Commission (Eurostat Statistics in Focus
28/2012) shows that five of the European Union Member States are included in the
world’s top 10 destinations for holidaymakers. These are Italy, Spain, France,
Austria and Germany.98 In 2017, across the EU, the top four most popular destina-
tions for non-residents were Spain, Italy, France and the United Kingdom, which
together accounted for more than half (56.2%) of the total nights spent by
non-residents in the EU-28.99
However, the statistical definition of ‘tourism’ is broader than its legal or common
definition inasmuch as it encompasses not only private trips but also businesses trips.
This is primarily because the tourism statistics see tourism from an economic
perspective.
93
94
Asia, Africa, North America, South America, Europe, Australia, and Antarctica.
95
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Ger-
many, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland,
Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, U.K., Croatia.
96
Eurostat, Key figures on Europe, 2017, Luxembourg. PDF /ISBN 978-92-79-72272-1, p. 15.
97
https://europa.eu/european-union/about-eu/figures/living_en#size_and_population website vis-
ited on 23.04.2018.
98
Eurostat, Statistics Explained Archive (May 2012), pp. 1106, 1144.
99
Eurostat, Key figures on Europe, 2017, Luxembourg. PDF /ISBN 978-92-79-72272-1, p. 119.
The Europeans made five million more holiday trips in 2011 but spent less days at
their destination. Curiously, the survey observed that over the past 4 years, the number
of holiday trips made by residents has remained more or less stable at just over one
billion. In 2011, there was even a slight rise of 0.5% compared with 2010.100
The set of data sources in the EU is the Eurostat statistics on international trade in
services, which use methodological references from the International Monetary
Fund (IMF) and the United Nations’ manual on statistics of international trade in
services. The Eurostat includes three main sub-items: transport, travel and other
services.
Transport covers all transport services that are provided by residents of one
economy for those of another and that involve the carriage of passengers, the
movement of goods (freight), rentals (charters) of carriers with crew, and related
supporting and auxiliary services. All modes of transport are considered, including
sea, air, space, rail, road, inland waterway and pipelines, as are other supporting and
auxiliary services (such as storage and warehousing).101
Travel covers primarily the goods and services acquired from an economy by
travellers during visits of less than 1 year to that economy. The goods and services
are purchased by, or on behalf of, the traveller or provided, without a quid pro quo
(that is, they are provided as a gift), for the traveller to use or give away. The
transportation of travellers within the economies that they are visiting, where such
transportation is provided by carriers not resident in the particular economy being
visited, as well as the international carriage of travellers, is excluded; both are
covered in passenger services under transport. Also excluded are goods purchased
by a traveller for resale in the traveller’s own economy or in any other economy.
Travel is divided into two subcomponents: business travel and personal travel.102
Other services comprise external transactions not covered under transport or
travel, specifically communication services; construction services; insurance ser-
vices; financial services; computer and information services; royalties and license
fees; other business services; personal, cultural and recreational services; and gov-
ernment services.103
3.3 Travel Law
The European ‘travel and tourism law’ or even ‘travel law’ is not clearly recognised
as a traditional field of law. Travel rules have been achieved by a series of directives
under the scope of consumer law. It is not a separate or self-contained field of law. In
100
European Union, 2012. Manuscript completed on: 22.06.2012. Data extracted on 04.06.2012.
Catalogue number: KS-SF-12-028-EN-N. ISSN 1977-0316.
101
Eurostat, Statistics Explained Archive (May 2012), p. 1173.
102
Idem, p. 1173.
103
Idem, p. 1173.
3.3 Travel Law 105
some respect, it is the application of well-established rules, principles and processes

of general ‘consumer law’ to the resolution of consumer and travel problems and
disputes. Therefore, the subject cannot be understood without a good understanding
of ‘consumer law’ as a whole.
Many questions on ‘travel law’ can be answered through ‘consumer law’, but
modern problems have also prompted the creation of a new law or the clarification,
amendment or repeal of an existing law. For example, Directive on package travel
and linked travel arrangements repealed Directive 90/314/EEC. It extended the
protection for traditional travel packages combined by the supplier to include travel
packages that are combined at the traveller’s request. In addition, the Directive
introduced the concept of ‘linked travel arrangements’, which is not a package, as
further examined.
In the travel sector, the existence of different services integrated by different
sectoral legislation automatically triggers basic assessments. Single services, for
example, may be considered as accommodation; car rental; air,104 rail,105
bus/coaches106 and waterborne107 transportation; or other tourist services such as
events/excursions.
Whereas the transport sector is submitted to a number of regulations, other sectors
such as accommodation, car rental and other services are not specifically regulated,
except if part of the ‘package travel’ and covered by general EU laws such as Unfair
business to consumer commercial practices and Unfair terms in consumer contracts,
as well as the Consumer Rights Directive.
The Consumer Rights Directive (CRD) excluded contracts that fall within the
scope of the Package Travel Directive.108 Such exclusion does not mean that the
provisions of the ‘Package Travel Directive and Linked Travel Arrangements’ do
not tackle consumer protection; on the contrary, both the Directive on package travel
and linked travel arrangements109 and the CRD110 imply ‘package travel’ as one of
the targets of consumer protection legislation. Such an approach perceives that travel
104
Regulation (EC) 261, 2004.
105
Regulation (EC) 1371, 2007.
106
107
108
Directive 2011/83/EU, Art 3 (3) (g): ‘(3) This Directive shall not apply to contracts: (g) which
fall within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel, package
holidays and package tours.’
109
Directive 2015/2302/EU, Recital (3): Article 169(1) and point (a) of Article 169(2) of the Treaty
on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the
attainment of a high level of consumer protection through measures adopted pursuant to Article
114 TFEU. Recital (6) while ensuring a high level of consumer protection across the Union, it is
necessary to further approximate the laws of the Member States relating to packages and linked
travel arrangements.
110
Directive 2011/83/EU, Recital (32): ‘The existing Union legislation, inter alia, relating to
consumer financial services, package travel and timeshare contains numerous rules on consumer
protection. For this reason, this Directive should not apply to contracts in those areas.’
law is closer to being a subdivision of consumer law rather than a separate traditional
field of law.
In this context, a separate EU policy on travel law would envisage a separate legal
standard exclusively for travel policy and legislation. However, this approach does
not meet the current EU policy framework.
At the moment, which kind of policy does EU stress: travel or tourism?
In line with the consumer policy, the EU is signalling to strengthen tourism policy
rather than travel policy, mainly because ‘tourism’, which was not contemplated by
the former EC Treaty, appears prominent in EU Treaty, currently in the TFEU.111
Curiously, years ago, persistent authors had predicted the need for a European
tourism policy, stating that transport policy, environmental protection policy, con-
sumer policy, to name the most important ones, constitute single pieces that have to
be connected with each other. Therefore, the difficult aim of a European tourism
policy must be to coordinate these other sectors of policy.112
Now the EU sources have stated that the Committee of the Regions ‘welcomes
the Commission’s desire to deal with the tourism policy in a coordinated and
integrated fashion, linking it to other policies such as transport, agriculture and
environmental protection policies, information and communication technologies,
social policy, culture, etc; (. . .) In this regard, the Commission’s approach of
integrating tourism into the different European policies is to be welcomed’.113
In addition, pressures regarding climate change, which addresses the need for a
green economy on the environment,114 are also pushing for new policies. For
instance, ‘the transformation into an inclusive green economy requires the integra-
tion of environment issues into other policies, such as energy, transport, agriculture,
fisheries, trade, economy and industry, research and innovation, employment, devel-
opment, foreign affairs, security, education and training, as well as social and
tourism policy, so as to create a coherent, joined-up approach. Action within the
Union should also be complemented by enhanced global action and cooperation
with neighbouring countries to tackle common challenges.’115
Although the European Union has been able to lay the foundations for a European
tourism policy, whilst taking account of the need for sustainable development,116 the
EU tourism policy currently is limited only to funding the tourism sector for private
and public purposes, including programmes and financial support for tourism
111
TEU and TFEU (2010), TFEU Art 6: The Union shall have competence to carry out actions to
support, coordinate or supplement the actions of the Member States. The areas of such action shall,
at European level, be: (. . .) (d) tourism. Art 195: The Union shall complement the action of the
Member States in the tourism sector, in particular by promoting the competitiveness of Union
undertakings in that sector. (. . .)
112
Tonner (1998), p. 33. See also McDonald (2003).
113
OPINION CREU 2011/C 104/03 (2011).
114
UNITED Nations, A/CONF.216/L.1 (2012).
115
Decision 1386/2013/EU Action Programme to 2020, on a General Union Environment Action
Programme to 2020 ‘Living well, within the limits of our planet’ (Text with EEA relevance), 2013.
116
COM (2010) 352 final, p. 4.
3.3 Travel Law 107
projects.117 ‘Tourism’ did not achieve a legal status within the EU acquis as ‘travel’
did, through the PTD. So far, ‘tourism’ is restricted to ‘EU tourism policy’.
When the issue is to implement sectoral policies, the EU mentions ‘travel’ in less
prominent role, e.g. ‘the need to factor consumer interests from the outset into the
design and implementation of sectoral policies of key importance for consumers, in
particular in the food chain, energy, travel and transport, sustainable products,
digital and financial services sectors’.118 Travel Policy takes place also concerning
the condemnation of the sexual abuse of children in the EU119 or on Europol’s staff
regulations.120 It is noteworthy that the Union shall develop a policy with a view to
the conditions under which nationals of third countries shall have the freedom to
travel within the Union for a short period. This, however, is in regard to policies on
border checks, asylum and immigration rather than to travel policy as a whole.121 As
a result, there is a fuzzy boundary between ‘tourism policy’ and ‘travel policy’ in the
Union.
For a long time, after the EU enacted the PTD in the 1990s and the growth in the
travel industry increasing consumer demand for travel services, the lawmakers and
authors have created a new legal approach to the sector; the ‘travel law’ approach.122
In terms of European law doctrine, there were also small variations in the subject,
whether it is holiday law123 or solely tourism law124 or indeed travel law.125 Experts
have pointed out that the laws protecting passengers and holidaymakers at EU level
are fragmented and lacking in cohesion.126 Even so, ‘travel law’ is still strong in the
EU legal cultural perspective because of the existence of the PTD named nowadays
as package travel and linked travel arrangements.
If a relevant statute exists, the references to it will serve as an introduction to
encourage the existence of a field or a sub-field of law. A search for statutory
authority is always necessary because it is no longer realistic to assume that there
is no pertinent statute. Although the statutory law is an excellent place to begin the
assumptions of validity of a field of law, it is not substantial. To confine the scope of
117
Directorate-General for Enterprise and Industry, 2014, downloadable on: http://ec.europa.eu/
enterprise/sectors/tourism/index.en.htm webpage visited on: 05.04.2015.
118
Resolution 2012/3190 (2012).
119
OPINION EESC 2009/C 317/07 (2009) (5) (5.2) EU institutions can lead the way by introducing
their condemnation of the sexual abuse of children as part of their ethical travel policy and include
this on all travel expense reimbursement forms.
120
Council Act 2004/C 114/02 OJ 30.4.2004 (1) It is desirable to amend the Staff Regulations
applicable to Europol employees, as laid down in the Council Act of 3 December 1998 (5) (‘Staff
Regulations’) in particular in order to improve the travel policy.
121
TEU and TFEU (2010), TFEU Art 77 (c).
122
Yaqub and Bedford (1997).
123
124
Howells and Wilhelmsson (1997), Contents: Tourism.
125
Karsten (2010), pp. 201–215.
126
Tonner and Schuster (2005), p. 3.
an autonomous meaning to a subject, turning it into an autonomous field of law

requires general principles underlying the legal system as a whole.
This is true for consumer law127 but not for ‘travel law’. ‘Travel law’ has no
relevance in the general principles underlined by the EU Treaty. Whilst the con-
sumer has a prominent protection under the principles established by the treaty,
travellers or tourists were not even mentioned. The treaty refers to ‘tourism’ in
Article 6, where the Union shall have competence to carry out actions to support,
coordinate or supplement, inter alia, ‘tourism’.128
In this context, there are two aspects that the EU system regulates: (1) consumer
interests and (2) tourism as an economic activity.129 The first means a legal person,
the second an economic phenomenon. The EU is interested in protecting the interests
of consumers (consumer protection)130 and in carrying out actions to support,
coordinate or supplement the actions of the Member States, inter alia, related to
the tourism sector.131
Although legal studies over the years have addressed ‘travel law’ based on the
PTD, there is now an upward trend towards ‘tourism’. However, no exclusive piece
of legislation on ‘tourism’ exists in the EU acquis, and ‘tourism policy’ is restricted
to financial and funding projects.
Overall, nowadays ‘travel law’ is considered not a traditional autonomous field of
law but a subdivision of consumer law in view of the existence of PTD 90/314/EEC,
which was replaced by Directive 2015/2302/EU. In fact, it is a sectorial legislation
relying on the consumer law system. Therefore, the impact of consumer law on the
sectorial ‘travel law’ or, better, ‘travel and tourism law’ legislation is unavoidable.
3.3.1 Further Developments
It is difficult by nature to envisage travel law outside of the scope of consumer law.
The current Directive on package travel and linked travel arrangements emphasises
that the majority of travellers buying packages are consumers in the sense of Union
127
TEU and TFEU (2010), TFEU Art 4 (2), ‘Shared competence between the Union and the
Member States applies in the following principal areas: (f) consumer protection’; Art 169, ‘In
order to promote the interests of consumers and to ensure a high level of consumer protection, the
Union shall contribute to protecting the health, safety and economic interests of consumers, as well
as to promoting their right to information, education and to organise themselves in order to
safeguard their interests’.
128
Idem, Art 6 (d).
129
McDonald (2003), p. 8: ‘The stress here is significant. It is not tourism in itself, but tourism as
part of the common market, as an economic activity, which forms the basis for significant
Community action impacting tourism.’
130
TEU and TFEU (2010), TFEU Art 4 (2) (f), Art 12, Art 114, Art 169.
131
Idem TFEU Art 6.
3.3 Travel Law 109
consumer law.132 But now, it will focus on the traveller and no longer on the
consumer.
Authors have argued that it might be advisable to consolidate the various different
pieces of EU legislation into one legislative instrument, which could be called the
‘EU Travel Code’133 or ‘Consumer Travel Directive’.134 The latter is more realistic
and more closely connected with the logic of the current EU legal scheme.
Whilst there is a common sense acquainted with the logic of ‘the consumer’, the
persons created by law, e.g. ‘passenger’ or ‘traveller’, pressure for a legal cohesion.
Such a pressure can also arise if gaps in the law start to become a problem. The great
number of exceptions inserted into the general rules may not prevent incoherencies
in the system. It is not possible ab initio to foresee what combinations of circum-
stances will arise. Hence, it is impossible to consider before a particular case what
sacrifice or compromise of interests or values the lawmaker will wish to do in order
to reduce the risk of harm.135
When the law has a number of exceptions, it does so in the knowledge of a
mechanism for obviating problems flowing from national differences. However, it
causes much uncertainty to individuals, which increases the level of consumer
vulnerability, now not because of the market but because of the law.
In addition, whilst the Consumer Rights Directive extended the period of with-
drawal to 14 days, which is an achievement, it at the same time imposed many
exceptions from the right of withdrawal136 that more generally decreased the level of
consumer protection of some consumers. Thus, specific single services are not
covered by the right of withdrawal, as for instance accommodation provided by
hotels or holiday cottages or cultural or sporting events, as mentioned in Recital
(49) of the CRD.
3.3.2 The Package Travel and Linked Travel Arrangements

Directive
The current Directive 2015/2302/EU is the centrepiece of legislation in the travel and
tourism sector. It mentions that traders should take into account the specific needs of
travellers who are particularly vulnerable because of their age or physical infir-
mity.137 In this way, Directive 2015/2302/EU reproduced the understanding of the
Directive on unfair business to consumer commercial practices, in which
132
133
IP/A/IMCO/ST/2011-17 (2012), p. 33.
134
135
Hart (1961), p. 129.
136
Directive 2011/83/EU, Art 16 (l).
137
vulnerability is laid down only on those individuals whose characteristics make them
particularly vulnerable to unfair commercial practices.138
Significantly, as herein said, the traveller achieved a legal status in the current
Directive. Under the former Directive, the person targeted by the statute was the
consumer rather than the traveller. Even so, the definition of consumer carried out by
the former Directive was entirely different from other consumer protection
directives.
Over the past 24 years, because of significant changes in the market, the level of
protection of the former Directive was reduced considerably, mainly owing to the
development on the Internet of the so-called dynamic packaging or dynamic bun-
dling. That Directive belonged to the first generation of consumer protection direc-
tives adopted between 1985 (Doorstep Selling Directive, 85/577/EC) and 1999
(Sales of Consumer Goods Directive, 1999/44/EC), following the minimum stan-
dard principle.139
In addition, the former PTD did not explicitly state whether the package arranged
at the request of the consumer, a tailored package, would be under its protection. The
Court of Justice of the European Union had clarified the matter affirmatively in
favour of the consumer,140 being that the current Directive 2015/2302/EU included
provisions in this regard.
Although not clearly expressed by the former Directive, the business traveller
as a purchaser of a package travel could possibly be included in the definition
of consumer in view of the wide definition of consumer developed by that
Directive. Since the beginning, authors have argued that ‘the scope of the Directive
is broader than being a pure Consumer Protection measure’.141 Indeed, the
original aim of enlarging the protection to cover business travellers has survived in
the current Directive 2015/2302/EU. It states that it should apply to business
travellers, including members of liberal professions, or self-employed or other
natural persons, where they do not make travel arrangements on the basis of a
general agreement.142
The Directive pointed to a legal approach strengthening specific traveller’s rights,
permitting to say that the traveller is a special consumer under EU consumer acquis.
It is no exaggeration to state that the traveller is a special consumer as Directive
2015/2302/EU sets forth: ‘The majority of travellers buying packages or linked
travel arrangements are consumers within the meaning of Union consumer law.’143
Therefore, it will create the opportunity for a consumer relationship with a
broader definition inasmuch as consumer protection embeds norms that are more
138
139
Tonner (2013), p. 126.
140
ECJ 30.04.2002 C-400/00, Club Tour.
141
142
143
Idem, Recital (7).
3.3 Travel Law 111
general. These equally apply to travellers such as tourists and/or some particular
business persons. By nature, it is unavoidable to consider the traveller as a consumer
in a complex large consumption society. Even the travel industry employs the term
traveller on a daily basis.
In most of the cases, consumption is the intimate cause of travelling even when
encapsulated in leisure. General EU consumer law covers travel and tourism services
(such as accommodation and car rental), so consumers making travel arrangements
are protected against unfair practices throughout the EU.144
The communication from the Commission to the EU Parliament emphasises
that being the most vulnerable party to the contract, especially when travelling,
consumers enjoy a general set of rights, which limit problems and guarantee
acceptable service throughout the EU.145 One striking aspect to note here is that
the contract is the exclusive source that informs about where the supplier is
established. It means that if a European traveller enters into a contract with a supplier
established in a non-Member State, he or she will be out of the scope of the
Directive’s protection.
It is noteworthy that the traveller should receive all necessary information before
purchasing a package, whether it is sold through means of distance communication,
over the counter or through other types of distribution. In providing this information,
the trader should take into account the specific needs of travellers who are partic-
ularly vulnerable because of their age or physical infirmity, which the trader could
reasonably foresee.
Nevertheless, Directive 2015/2302/EU did not clarify to what extent the
information before purchasing a package should be transmitted to the traveller.146
As the approach of the EU to vulnerability remains on personal characteristics
of the individual, would be expected detailed requirements about information
on accessibility into the new Directive. Rather, it states that ‘the trader should
take into account the specific needs of travellers who are particularly vulnerable’.
It does not specify how this should be done, as for instance whether the
information should include how many seats for disabled persons should be
made available on the aircraft or if the hotel has lift accessible for wheelchair and
so on.
Finally, as already said, the Directive approaches the vulnerability embedded in
specific scope regarding personal characteristics of the individual, rather than a
principle covering all consumers.
More details regarding the Directive are found on Sect. 3.4.5, ‘Travel Contract’.
144
COM (2013c) 513, p. 3.
145
COM (2013c) 513, p. 2.
146
3.4 Service Contracts and Ancillary Contracts. Single

Service and Combined Services
According to the type of service, whether single or combined, contracts may include
different terms and may be under general law (lex generalis) and/or special law (lex
specialis). Whilst accommodation, car rental and other services such as events, tours,
excursions and the like fall within the coverage of general law, transport, packages
and linked travel arrangements are considered under special laws.
The term ‘ancillary contract’ refers to a subordinate contract where the consumer
acquires services related to a timeshare contract or a long-term holiday product
contract and that is provided by the trader or a third party on the basis of an
arrangement between that third party and the trader. In the wording of the Timeshare
Directive, although ‘ancillary contract’ comprises more than one service, it is not a
combination of services. The Directive does not use the term ‘combination’ at all.
It is interesting that the directives, on ‘timeshare’ and ‘package travel and linked
travel arrangements’, have approached more than one services/contracts in different
manners and at different levels. That is to say, though by nature they refer to a
combination of services targeted at one purpose, denoting a union of at least two
services, the directives formulated the concept in different ways. Whilst Directive
2015/2302/EU employs the term ‘combined’ for such services/contracts, Directive
2008/122/EC on timeshare employs ‘ancillary contracts’. The reason may be tech-
nical—to avoid confusion with packages and LTA. However, legal persons are
different. Timeshare is to consumer; package and LTA are to traveller.
Contract law in Europe is a field comprised of a number of rules. The EU uses
directives to harmonise national provisions in different sectors to straighten the
relationship between business and consumers. To name the important ones for travel
and tourism law, there are directives on unfair terms in consumer contracts,147 on
unfair business-to-consumer commercial practices,148 on consumer rights149 on
services in the internal market150 on timeshare contracts151 and on package travel
contracts and linked travel arrangements.152 Besides the directives, there are regu-
lations, which are directly applicable in all Member States.
The term ‘travel contract’ is found in the CCV with the following definition:
‘“Travel Contract” means either an organized travel contract or an intermediary
travel contract’.153 Thus, the borderline between organised travel contract and
intermediary travel contract is the point for determining the shape of travel and
147
148
149
150
151
152
153
CCV (1970), Art 1 (1).Note: In the EU only Italy still remains a signee of this convention.
3.4 Service Contracts and Ancillary Contracts. Single Service and Combined Services 113
tourism services, whether combined or single. In EU consumer law, contracts are

under rules of general law or special law.
Whilst there are services under the scope of general law such as accommodation
and car rental,154 other services are under the scope of special law such as trans-
port155 and package travel and linked travel arrangements.156 However, although
intermediary services are conceived as single services, not all single services are
intermediary. It is the case, for example, where the consumer books hotel accom-
modation directly without any intermediary service provided by a travel agent.
The importance of determining whether the service is combined or single is not in
what they say about the particular task itself (e.g., hotel booking service) but in what
they reveal about how to identify the law applicable to the contract, for it turns out
that a hotel booking service included and sold together, at an inclusive price, with
other services such as transportation and tour is not a single service anymore. If there
are more than one services included in one contract or separate contracts combined,
it turns into a combined services, which falls under the scope of special provisions of
the Directive on package travel and linked travel arrangements. The point is to verify
whether the contract is a ‘package’ or ‘linked travel arrangements’. They have
different kinds of protection. See the chapter ‘Travel Contract’ in line with Flow-
charts 1 and 2.
The obvious dividing line in matters of contract is between the common sense of
contract and the legal sense of it. The common sense considers a contract to be a
formal written document, which is a misconception; on the other side, the legal sense
considers a contract as any agreement that the law will enforce. Although this may
appear as a superficial observation, it sets clear the simplicity or complexity between
different forms of contracts. Whilst some contracts might be as very simple as
buying a ticket to the theatre or to the amusement park or buying snacks and coffee
from a vending machine, other contracts may be as complex as the combination of
services embedding different liability rules, like the package travel contracts and
linked travel arrangements.
Complex contracts may also easily hide unfair terms insofar as the supplier or
seller may impose terms that the consumer had no real opportunity to read and
understand before signing the contract.157
Over the years, there were barriers from divergent contract laws adopted by
Member States, particularly because the directives mainly related to consumer rights
and package travel were conceived to provide a minimum standard of legal protec-
tion. Such a standard did not prevent the Member States from having rules that were
more favourable. For example, one of consumers’ main concern is what remedies
154
COM (2013c) 513, p. 3: ‘Travel and tourism services (such as accommodation and car rental) are
covered by general EU consumer law.’
155
Air- Regulation 261/2004, Rail—Regulation 1371/2007, Bus and coaches—Regulation
181/2011, Waterborne transport—Regulation 1177/2010.
156
157
COM (2013c) 513, p. 3.
they have when a product purchased from another Member State is not in conformity
with the contract. Many consumers are therefore discouraged from purchasing
outside their domestic market.158 Recent findings have shown that one in three
retailers with more than ten employees would be interested in making cross-border
sales in the EU if the laws regulating transactions with consumers were the same
across the EU.
Likewise, the large majority of retailers that have made cross-border sales (70%)
would be interested in making cross-border sales to more countries if the laws
regulating consumer transactions were the same across the EU.159
As a result, the European Union is shifting from the principle of minimum
standard to the principle of full harmonisation, which is now included in the
Consumer Rights Directive (CRD)160 and the Package Travel and Linked Travel
Arrangements Directive.161
It is a positive achievement, but the effects will take longer until the first results
start to be noted.
3.4.1 Contract of Carriage of Passenger
In essence, the contract of carriage of passengers includes a single service, but it does
not mean that the service is not included in contracts compiled by combined services.
When it happens, it is relevant in terms of contracts because the service combined
with other services will be assessed under different rule(s) other than transport
legislation only. That is to say, the type of contract also changes. If the service of
carriage of passenger comes all together at once with other services rather than a
service completely isolated, the contract of carriage of passenger will be somehow
included in the main contract of the package travel contract or linked travel
arrangements.
Thus, depending on the service (whether single or combined), the contract is
classified under different types of norms.
The EU has a set of norms that standardised entitlements, such as Regulation
261/2004 on the protection of passengers against denied boarding, cancellation or
158
COM (2011a) 635, pp. 3–4.
159
COM (2011c) 942, (46).
160
Directive 2011/83/EU Art 4: ‘Member States shall not maintain or introduce in their national
law, provisions diverging from those laid down in this Directive, including more or less stringent
provisions to ensure a different level of consumer protection, unless otherwise provided for in this
Directive.’
161
Directive 2015/2302/EU Recital (5) ‘the harmonisation of the rights and obligations arising from
contracts relating to package travel and to linked travel arrangements is necessary for the creation of
a real consumer internal market in that area, striking the right balance between a high level of
consumer protection and the competitiveness of business’.
long delay of flights (air passenger’s rights). Luggage is under the Montreal Con-
vention and Regulation 1008/2008.
With the adoption of passenger rights for bus and coach transport in 2011, the EU
now has a comprehensive and integrated set of basic passenger rights rules in all
modes of transport: air, rail, waterborne and road. The EU legislator had two aims:
first, to introduce a common set of passenger rights, guaranteed by law, for the four
transport modes and, second, to allow the necessary distinctions on account of the
specific characteristics of each mode and their markets related to the industries and
passengers to ensure proportionality.162 The legislation as a whole set rules for how
companies should deal with delays, cancellations, lost or damaged luggage and
online pricing, also stating what levels of service passengers should expect and
giving them information about their rights in terms of refunds, alternative transport
and financial compensation.163
All these modes are means of transport, which have different requirements,
discussed below.
The contract of carriage of passenger by air is under Regulation 261/2004 on
compensation and assistance to passengers in the event of denied boarding and of
cancellation or long delay of flights; Regulation 2027/97 on air carrier liability in the
event of accidents, as amended by Regulation 889/2002,164 which changed the title
of Regulation 2027/97 to air carrier liability in respect of the carriage of passengers
and their baggage by air, as well as by the Montreal Convention; and few other
provisions extracted from legislation dealing with matters other than the formation of
a contract, as for instance pre-contractual information duty found in Regulation
1008/2008 on common rules for the operation of air services in the Community.165
Whilst the Montreal Convention provides remedies assessed on a case-by-case
basis depending on the individual damages suffered by the passenger, Regulation
261/2004 establishes standardized entitlements (regarding assistance and care)
applicable to all passengers, regardless of their individual circumstances, in the
event of denied boarding, cancellation or long delay of flights. Regulation 889/02
(which amended Regulation 2027/97) entitles the passenger to be compensated in
case of mishandled baggage up to €1200, except if the airline demonstrates the
162
COM (2011b) 898 final, p. 1 (I-Introduction), (II-Review of passenger rights legislation).
163
Hunter (2014), p. 8.
164
Regulation (EC) 889, 2002 amending Council Regulation (EC) 2027/97 on air carrier liability in
the event of accidents.
165
Regulation (EC) 1008, 2008, Art 23 sets forth that the air fares and air rates available to the
general public shall include the applicable conditions when offered or published in any form,
including on the internet, for air services from an airport located in the territory of a Member State to
which the Treaty applies. The final price to be paid shall at all times be indicated and shall include
the applicable air fare or air rate as well as applicable taxes, and charges, surcharges and fees which
are unavoidable and foreseeable at the time of publication. In addition to the indication of the final
price, at least the following shall be specified (a) air fare or air rate; (b) taxes; (c) airport charges; and
(d) other charges, surcharges or fees, such as those related to security or fuel. (. . .) Optional price
supplements shall be communicated in a clear, transparent, and ambiguous way at the start of any
booking process and their acceptance by the customer shall be on ‘opt-in’ basis.
adoption of reasonable measures to avoid the damages or the impossibility to

implement such measures. On the other hand, Regulation 261/2004 requires air
carriers to provide passengers with assistance, such as meals, refreshments, tele-
phone calls and hotel accommodation; offer rerouting and refunds; pay flat-rate
compensation between €250 and €600 per passenger, depending on the flight
distance; and proactively inform passengers about their rights. Neither the Montreal
Convention nor Regulation (EC) 2027/97 requires the establishment of enforcement
bodies (NEBs) to ensure their correct application,166 but it is required by Regulation
261/2004, Article 16 (1).
If the delay is longer than 5 h, under Regulation 261/2004, the passenger may
claim for reimbursement of the full ticket price or the cost of the unused ticket
segment or rerouting.167 The same right of reimbursement also applies to passengers
whose flights form part of a package, except for the right to reimbursement where
such right arises from Directive 90/314/EEC,168 repelled by Directive 2015/2302/EU.
Regulation 261/2004 shall not affect the rights of passengers granted by the Package
Travel Directive.169
The ticket is the valid document giving the passenger entitlement to transport, or
it could be something equivalent such as one in paperless form, including electronic
form,170 proving the conclusion of the contract of air carriage. The contract is
performed between the air carrier and a passenger directly or on behalf of another
person, legal or natural, who has a contract with that passenger.171 Though it does
not apply to passengers travelling free of charge or at a reduced fare, not available
directly or indirectly to the public, it shall apply to passengers having tickets issued
under a frequent flyer programme or other commercial programmes by an air carrier
or tour operator.172
Except where there are reasonable grounds to deny boarding to passengers, such
as health, safety or security or inadequate travel documents, the air carrier cannot
refuse to carry passengers on a flight if they have presented themselves for boarding
in time to conclude the checking process.173 If boarding is denied to passengers
against their will, the operating air carrier shall immediately compensate them174
with (a) 250€ for flights of 1500 km or less; (b) 400€ for intra-Community flights of
more than 1500 km and for all other flights between 1500 and 3500 km; (c) 600€ for
all flights not falling under (a) or (b).175 However, as already said, if the passenger
166
COM (2013a) 130 final, p. 2.
167
Regulation (EC) 261, 2004, Art 8 (1) (a) (b) (c).
168
Idem, Art 8 (2).
169
Idem, Art 3 (6).
170
Idem, Art 2 (f).
171
Idem, Art 2 (b).
172
Idem, Art 3 (3).
173
Idem, Arts 2 (j), 3 (2).
174
Regulation (EC) 261, 2004, Art 4 (3).
175
Idem, Art 7 (1).
decides to continue the trip, the air carrier shall offer to him/her, meals and refresh-
ments; hotel accommodation, if necessary; transport between the airport and the
place of accommodation.176
The burden of proof concerning questions of whether and when the passenger has
been informed of the cancellation of the flight lies with the air carrier.177
The air carrier is liable for death and for any personal injury of passengers
according to provisions set forth by Regulation 2027/97 as amended by Regulation
889/2002. It extended the Montreal Convention’s applicability to domestic flights,
whether the accident that caused the death or injury took place in the course of any of
the operations of embarking or disembarking or on board the aircraft.178 The
Montreal Convention and Regulation 2027/97 set a maximum limit of compensation
calculated by applying the special drawing rights (SDR), as defined by the Interna-
tional Monetary Fund.179
Taking up, inter alia, concerns of the notion of ‘extraordinary circumstances’, the
European Court addressed the issue on Case-549/07 (Wallentim-Herman). Through
this decision, the court clarified when a technical problem in an aircraft should not be
regarded as an ‘extraordinary circumstances’.
Moreover, other cases assessed by the CJEU also impact on the interpretation of
the current Regulation by the EU Commission. In the joined cases C-402/07
(Christopher Sturgeon and Others v Condor Flugdienst GmbH) and C-432/07
(Stefan Böck and Cornelia Lepuschitz v Air France SA), the court held that a long
delay of at least 3 h at arrival is enough to entitle passengers to compensation.
More recently, an interesting case180 challenged the CJEU in the interpretation of
the notion of ‘extraordinary circumstances’ included in Regulation 261/2004 in
relation to Articles 5 (1) (b) and 9. Whereas these articles provide the passenger
the right to assistance and care in case of cancellation of the flight, other provisions,
such as Article 7, set forth that an air carrier shall not be obliged to pay compensation
if it can prove that the cancellation is caused by extraordinary circumstances that
could not have been avoided even if all reasonable measures had been taken. The
request to the court happened because the air company refused to provide the
passenger with the necessary care after the eruption of the Icelandic volcano
Eyjafjallajökull, which more generally led to closure of part of the European airspace.
The CJEU ruling must be interpreted to mean that circumstances such as the
closure of part of European airspace as a result of the eruption of the volcano
constitutes ‘extraordinary circumstances’ within the meaning of Regulation
261/2004, which does not release air carriers from their obligation to provide
care laid down in Articles 5 (1) (b) and 9. In addition, an air passenger may only
obtain the reimbursement of the amounts that proved necessary, appropriate and
176
Idem, Art 9 (a) (b) (c).
177
Idem, Art 5 (4).
178
Regulation (EC) 2027, 1997, Art 1.
179
Montreal Convention, O.J. L194, 18.07.2001, Art 23 and Regulation (EC) 2027, 1997, Art 3 (2).
180
ECJ 31.01.2013 C-12/11, Denise McDonagh v Ryanair Ltd.
reasonable, in the light of the specific circumstances of each case, to make up for the
shortcomings of the air carrier.
Actually, the background of the problem is not the compensation but rather how
to oblige the airline to provide reasonable assistance to the passengers for at least one
week. The Regulation is silent about the reasonable time. However, the CJEU’s
interpretation tackled the duty of care, and therefore it is in favour of the consumer.
In such a context but in a different approach, Directive 2015/2302/EU uses the
term ‘unforeseen events’ and ‘extraordinary circumstances’, stressing two different
scopes. Whilst in the first the traveller should, under certain conditions, be entitled to
transfer a package to another traveller and pay the expenses to the organiser,181 in the
second the traveller has the right to terminate the contract without paying any
termination fee where unavoidable and extraordinary circumstances will signifi-
cantly affect the performance of the package.182
The contract of carriage of passenger by rail is based on the provisions of the
Berne Convention of 1961 on Carriage by Rail, now COTIF of 1980, as amended in
1999, which was integrated and replaced by the current Regulation (EC) 1371/2007
on rail passengers’ rights and obligations. Additionally, in regard to general juris-
diction, which accounts for the majority of contracts of carriage of passengers,
Regulation 593/2008 on the law applicable to contractual obligations (Rome I),
which integrated the 1980 Rome Convention, as well as Regulation 864/2007,
related to non-contractual obligations (Rome II), also apply.
A milestone for the contract of carriage of passenger in the rail mode is Regula-
tion (EC) 1371/2007, which protects both kinds of passengers, international and
domestic. It produces direct effect of applicability on Member States. The Regula-
tion adopted part of the Convention Concerning International Carriage by Rail
(COTIF) of 1980, within Annex I attached to it.
The Railway undertakings may offer contract conditions more favourable for the
passenger than the conditions laid down by the Regulation.183
The ticket is evidence of the conclusion and the contents of the contract of
carriage of passenger by rail. In case of absence, irregularity, or loss of the ticket,
this shall not affect the existence or validity of the contract, but the passenger who
does not produce a valid ticket must pay a surcharge. If he or she refuses to pay the
carriage charge or the surcharge upon demand, he/she may be required by the
inspector to discontinue the journey. Likewise, if he/she presents a danger to safety
in regard to the functioning of the operations or to other passengers or, furthermore,
if he/she causes inconvenience to other passengers in an intolerable manner, he/she
shall be excluded from the carriage or may be required to discontinue the journey. In
this latter situation, the passenger shall not be entitled to a refund of any charge that
he/she may have paid in advance.184
181
182
Idem, Recital (31).
183
184
Idem, Annex I, Appendix A, Art 9 (1) (a) (b) and Art (2) (a) (b).
Under the general conditions of carriage, the passenger is allowed to take with
him any item easily handled, as well as live animals and those which do not disturb
or annoy other passengers; otherwise, they shall not be allowed. The responsibility
for the animals within hand luggage is entirely on the passenger.185
By the contract of carriage, which is represented by the ticket, the carrier is liable
to carry the passenger, his luggage and vehicles (such as bicycle, wheelchair and the
like) to the place of destination and deliver the luggage and vehicles to that place. If
the carriage of the bicycle does not affect the specific rail service, the transportation
may be done through the rolling stock available in the train that permits the
allocation of the bicycle on it.186
What is more, the Regulation sets forth that rail passengers in Europe have to be
informed comprehensively and in the most appropriate format about ‘pre-journey’
and ‘during the journey’. All in all, this information to be provided by the carrier
comprises as follows: (a) pre-journey, which includes general conditions applicable
to the contract; time schedules; accessibility and facilities for disabled persons and
persons with reduced mobility; accessibility and access conditions for bicycles;
availability of seats in smoking and non-smoking; first and second class, as well as
couchettes and sleeping carriages; any activities likely to disrupt or delay services;
availability of on-board services; procedures for reclaiming lost luggage; procedures
for submission of complaints, and (b) during the journey, which covers on-board
services, next station, delays, main connecting services, security and safety issues.187
In case of delay of more than 60 min, the railway shall provide two options to the
passenger: (a) reimbursement of the full cost of the ticket for the part of the journey
not made and for the part already made if the journey is no longer serving any
purpose in relation to the passenger’s original travel plan; in this latter situation, the
passenger is eligible for a return service to the first point of departure at the earliest
opportunity, and (b) continuation of the journey or rerouting under comparable
conditions to the final destination at the earliest opportunity or the final destination
at a later date at the passenger’s convenience. The payment of the reimbursement
shall be as follows: for a delay of 60–119 min, 25% of the ticket price, and for a
delay of 120 min or more, 50% of the ticket price.188 The compensation of the ticket
price must be paid within 1 month after the submission of the request for compen-
sation at the latest.189
Likewise, if the delay is more than 60 min, the carrier shall offer free of charge the
following: (a) meals and refreshments in reasonable relation to the waiting time, if
they are available on the train or in the station or can reasonably be supplied;
(b) hotel or other accommodation and transport between the railway station and
185
Idem, Annex I, Appendix A, Art 12 (1) and Art 15.
186
Idem, Annex I, Appendix A, Art 6 (1) (2) (3) combined with Art 6 of the Regulation.
187
Idem, Annex II: Minimum information to be provided by the railway undertakings and/or by
ticket vendors.
188
Regulation (EC) 1371, 2007, Arts 16 (a) (b) (c), 17 (1) (a) (b).
189
Idem, Art 17 (2).
the place of accommodation in cases where a stay of one or more nights becomes
necessary or an additional stay becomes necessary, where and physically possible;
(c) if the train is blocked on the track, transport from the train to the railway station,
to the alternative departure point or to the final destination of the service.190
In case of accidents arising out of the operation of the railway and happening
whilst the passenger is in, entering or alighting from the railway vehicles, the carrier
is liable for any loss or damage resulting from the death of, personal injuries to or any
other physical or mental harm to a passenger caused by such an accident.191 The
regulation predicts three situations of exclusion of such a liability: (1) if the accident
has been caused by circumstances not connected with the operation of the railway
and the carrier, in spite of having taken the necessary care, could not avoid the
consequences of the accident; (2) if the accident was due to the passenger’s fault;
(3) if the accident was due to the behavior of a third party.192
The regulation sets forth the upper limit per passenger at 175,000 SDR as a lump
sum or as an annual annuity corresponding to that sum in case of death or personal
injury, but national laws may increase this amount granted to the passenger.193
Moreover, in addition to the payment in case of death or personal injury, there is
also a limit of damages in case of loss of, or damage to, articles carried by the
passenger, up to a limit of 1400 SDR per passenger.194
The carrier’s liability varies up to the limits already mentioned, as established by
the Regulation, depending on accidents or carriage of hand luggage and animals by
other successive carriers. If successive carriers perform the carriage, governed by a
single contract, in case of death of and personal injuries to passengers, the carrier
contracted to provide the service in the course of which the accident happened is
liable. When the carriage service has not been provided by the carrier but by a
substitute carrier, the two carriers shall be jointly and severally liable.195
In case of registered luggage, where successive carriers perform the service of a
single contract, each of the carriers shall become a party to the contract of carriage in
respect of the forwarding of luggage or the carriage of vehicles. Therefore, they shall
assume the obligations arising therefrom. In such a case, each of the carriers shall be
responsible for the carriage over the entire route up to delivery.196
190
Idem, Art 18 (1) (2) (a) (b) (c).
191
Idem, Annex I, Appendix A, Art 26 (1).
192
Idem, Annex I, Appendix A, Art 26 (2) (a) (b) (c). Note: Another undertaking using the same
railway infrastructure shall not be considered as a third party.
193
Idem, Annex I, Appendix A, Art 30 (2). Note: According to IP/09/1871 the amount of 175,000
SDR is around €21,000 by December 2009.
194
Idem, Annex I, Appendix A, Art 34. Note: According to IP/09/1871 the amount of 1,400 SDR is
around €1,285 by December 2009.
195
Idem, Annex I, Appendix A, Art 26 (5).
196
Idem, Annex I, Appendix A, Art 38.
The contract of carriage of passenger by road is the ‘transport contract’. It

means a contract of carriage between a carrier and a passenger for the provision of
one or more regular or occasional services.197
It is mainly based on the following legislation: Regulation 181/2011 concerning
the rights of passengers in bus and coach transport, Regulation 864/2007 related to
non-contractual obligations (Rome II), Regulation 593/2008 on the law applicable to
contractual obligations (Rome I), as well as few other provisions extracted from
legislation dealing with matters other than transport services covering passenger
transport, as for instance the provisions protecting consumers against excessive fees
for the use of means of payment or against hidden costs. These provisions are
provided by Directive 2011/83 on Consumer Rights.198
The cornerstone of the contract of carriage of passenger by road is Regulation
181/2011, in force since 1 March 2013, producing direct effect of applicability on
Member States. Although it applies to single service of carriage of passengers, a
particular combined service may also be covered if the service was cancelled for
reasons of a regular service.
However, the regulation shall not affect the rights of passengers under Directive
90/314/EEC, which was replaced by Directive 2015/2302/EU, where a package tour
referred to in that Directive is cancelled for reasons other than cancellation of a
regular service.199 The Regulation points out a distinction between long-distance
(more than 250 km) and short-distance services, where there are general provisions
applicable to all services, including those below 250 km, such as non-discrimination
based on nationality, non-discriminatory treatment of disabled persons and PRM,
information before and during the journey, complaint mechanism established by
carriers and independent national bodies (NEBs), and provisions applicable to long-
distance services, such as assistance (snacks, meals, accommodation); guarantee of
reimbursement or rerouting; compensation; protection of passengers in case
of death, injury, loss or damage caused by accidents; and specific assistance free
of charge for disabled persons and PRM.
By principle, the bus or coach passenger is the weaker party to the contract of
carriage, meaning that all passengers should be granted a minimum level of protec-
tion.200 This implies that carriers may offer contract conditions that are more
favourable for the passenger than the conditions laid down in the Regulation.201
The ticket is the valid document or evidence of the conclusion of the contract of
carriage of passengers by road,202 and it may be issued by carriers in an electronic
format, unless other documents give entitlement to transport.203 The contract
197
Regulation (EU) 181, 2011, Art 3 (c).
198
Idem, Recital (27) and Art 3 (3) (k).
199
Regulation (EU) 181, 2011, Art 2 (8).
200
Idem, Recital (2).
201
Idem, Art 6 (2).
202
Idem, Art 3 (d).
203
Idem, Art 4 (1).
conditions and tariffs applied by carriers shall be offered to the public without any
direct or indirect discrimination based on the nationality of the passenger or the place
of establishment of the carriers or vendors but without prejudice to any social
tariffs.204 In the context of non-discrimination, carriers, travel agents and tour opera-
tors shall not refuse to accept reservation from a person on the ground of disability or
of reduced mobility, to whom tickets shall be offered at no additional cost.205
If the carrier refuses to accept a reservation or provide a ticket on account of
unsafe conditions, health problems, the design of the vehicle or the infrastructure
requirements, they (carriers, travel agents and tour operators) shall inform the person
concerned about any acceptable alternative services operated by the carrier.206
In case of cancellation or delay of more than 120 min or even in case of
overbooking, the passenger shall immediately be offered the choice between
(a) continuation or rerouting to the final destination at no additional cost and under
comparable conditions, as set out in the contract, and (b) reimbursement of the ticket
price and, where relevant, a return service by bus or coach free of charge to the first
point of departure, as set out in the contract. The payment shall be made within
14 days after the offer has been made or request has been received.207
If the carrier fails to offer this choice to the passenger, the passenger shall have the
right to receive the compensation amounting to 50% of the ticket price, in addition to
the reimbursement of item (b) as mentioned above. The carrier shall pay the
passenger within 1 month after the submission of the request for compensation.208
When the journey has a scheduled duration of more than 3 h, in case of
cancellation or delay in departure from a terminal of more than 90 min, the carrier
shall offer to the passenger free of charge the following: (a) snacks, meals or
refreshments in reasonable relation to the waiting time or delay, available to the
passenger on the bus or in the terminal or can reasonably be supplied, and (b) a hotel
room or other accommodation, as well as assistance to arrange transport between the
terminal and the place of accommodation in cases where a stay of one or more nights
becomes necessary. The limit of the total cost of accommodation per passenger, not
including transport to the hotel, is €80 per night for a maximum of two nights.
Carriers shall pay particular attention to the needs of disabled persons, persons with
reduced mobility and any accompanying persons.209
However, the carrier is released from the obligation to provide accommodation to
the passenger if it is proved that the cancellation or delay was caused by severe
weather conditions or major natural disasters endangering the safe operation of bus
or coach services.210 Furthermore, passengers with open tickets, as long as the time
204
Idem, Art 4 (2).
205
Idem, Art 9 (1) (2).
206
Idem, Art 10 (1) (2).
207
Idem, Art 19 (1) (a) (b) (5).
208
Idem, Art 19 (2).
209
Idem, Art 21 (a) (b).
210
Idem, Art 23 (2).
of departure is not specified, are not benefited by the continuation, rerouting and
reimbursement rights, as well as the assistance in case of cancelled or delayed
departures, except those passengers holding a travel pass or a season ticket.211
In the event of accidents that occurred in the use of the bus or coach, passengers
shall receive compensation for death, including reasonable funeral expenses or
personal injury, as well as for loss of, or damage to, luggage. The amount of
compensation shall be in accordance with the applicable national law. Any maxi-
mum limit provided by national law to the compensation shall not be less than
(a) €220,000 per passenger and (b) €1200 per item of luggage. In the event of
damage to wheelchairs, other mobility equipment or assistive devices, the amount of
compensation shall always be equal to the cost of replacement or repair of the
equipment lost or damaged.212
In addition, in the event of accident, the carrier shall provide reasonable and
proportionate assistance to the passengers to ensure they receive immediate needs
following the accident. Such assistance shall include, where necessary, accommo-
dation, food, clothes, transport and the facilitation of first aid. Any assistance
provided to the passenger shall not constitute recognition of the carrier’s liability.
For each passenger, the carrier may limit the total cost of accommodation to €80 per
night and for a maximum of two nights.213
The contract of carriage of passenger by sea is based on the Athens Convention
on Carriage by Sea,214 integrated by Regulation 392/2009 on the liability of carriers
of passengers by sea in the event of accidents through its Annex I. The subsequent
norm is Regulation 1177/2010, which provides additional rights to passengers
travelling by sea and inland waterway. It amended Regulation 2006/2004 on con-
sumer protection cooperation. Additionally, provisions are found in Directive 2010/
36/EU on safety rules and standards for passenger ships, which amended Directive
2009/45/EC (on safety rules and standards for passenger ships).
About jurisdiction, two norms apply: Regulation 593/2008 on the law applicable
to contractual obligations (Rome I) and Regulation 864/2007 related to
non-contractual obligations (Rome II).
A milestone for contracts of carriage of passenger by sea is Regulation 1177/
2010, in force since 18 December 2012. It states that since the maritime and inland
waterway passenger is the weaker party to the transport contract, all passengers
should be granted a minimum level of protection. Nothing should prevent carriers
from offering contract conditions more favourable for the passenger than the condi-
tions laid down by the Regulation.215 The Regulation shall not affect the rights of
211
Idem, Art 23 (1).
212
Idem, Art 7 (1) (2).
213
Idem, Art 8.
214
The Athens Convention relating to the Carriage of Passengers and their Luggage by Sea (PAL)
was adopted on 13 December 1974. It entered into force on 28 April 1987. The Protocol of 2002
was adopted on 1 November 2002 entered into force on 23 April 2014.
215
Regulation (EU) 1177, 2010, Recital (2).
passengers with combined service contract under Directive 90/314/EEC, which was
replaced by Directive 2015/2302/EU, where a package tour referred to in that
Directive is cancelled for reasons other than cancellation of the passenger service
or the cruise.216
In this regard, a cruise ship contract performed between a supplier and a consumer
for more than 24 h or that includes overnight accommodation is clearly a package
travel. The ECJ has already held that for a service to qualify as a package, it is
enough if it combines tourist services sold at an inclusive price, including two of the
three services referred to in that provision, namely transport, accommodation and
other tourist services not ancillary to transport or accommodation and accounting for
a significant proportion of the package.217
Regulation 1177/2010 sets forth that the ticket is the valid document or other
evidence of the conclusion of the contract of carriage of passenger by sea, the
transport contract,218 and may be issued by carriers in an electronic format unless,
under national law, other documents give entitlement to transport.219 The contract
conditions and tariffs applied by carriers shall be offered to the public without any
direct or indirect discrimination based on the nationality of the passenger or the place
of establishment of the carriers or vendors, but this is without prejudice to any social
tariffs.220 In the context of non-discrimination, carriers, travel agents and tour
operators shall not refuse to accept reservation from a person on the ground of
disability or of reduced mobility, to whom shall be offered tickets at no additional
cost under the same conditions that apply to all other passengers.221
If the carrier refuses to accept a reservation or provide a ticket on account of
unsafe conditions, health, the design of the passenger ship or port infrastructure and
equipment, including port terminals, that make it impossible to carry out the
embarkation, disembarkation or carriage of the disabled person or PRM in a safe
manner, they (carriers, travel agents and tour operators) shall inform the person
concerned about an acceptable alternative transport on a passenger service or a cruise
operated by the carrier.222
In case of cancellation or delayed departures of more than 90 min, the passenger
shall immediately be offered the choice between (a) rerouting to the final destination
at no additional cost and under comparable conditions, as set out in the contract, and
(b) reimbursement of the ticket price and, where relevant, a return service, free of
216
Idem, Recital (20).
217
ECJ 07.12.2010 C-585/08 and C-144/09 (37) and rule (1): A contract concerning a voyage by
freighter, such as that at issue in the main proceedings in Case C-585/08, is a contract of transport
which, for an inclusive price, provides for a combination of travel and accommodation within the
meaning of Article 15(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
218
Regulation (EU) 1177, 2010, Art 3 (n).
219
Idem, Art 4 (1).
220
Idem, Art 4 (2).
221
Idem, Art 7 (1) (2).
222
Idem, Art 8 (1) (2).
charge, to the first point of departure, as set out in the contract, at the earliest
opportunity. The payment of the reimbursement shall be made within 7 days, in
cash, by electronic bank transfer, bank order or bank cheque, of the full cost of the
ticket at the price at which it was purchased. If the passenger agrees, the full
reimbursement may also be paid in the form of vouchers and/or other services in
an amount equivalent to the price paid for the ticket, provided that the conditions are
flexible, particularly regarding the period of validity and the destination.223
On the other hand, in the event of delay in arrival, passengers may request
compensation from the carrier at the final destination. The transport contract shall
set out this term. The minimum level of compensation shall be 25% of the ticket
price for a delay detailed by the regulation between 1 and 6 h. If the delay exceeds
double the time set out in the hours pointed, the compensation shall be 50% of the
ticket price.224
Likewise, if the delay in departing is more than 90 min, the carrier shall offer free
of charge snacks, meals or refreshments in reasonable relation to the waiting time, if
they are available or can reasonably be supplied. Moreover, in the case of cancel-
lation or delay of departure where a stay of one or more nights or additional to that
intended by the passenger becomes necessary, where and when physically possible,
the carrier shall offer passengers departing from port terminals, free of charge,
appropriate accommodation on board, or ashore, and transport to and from the
port terminal and other places of accommodation, as well as additional snacks,
meals or refreshments, as provided before. For each passenger, the carrier may
limit the total cost of accommodation ashore, not including transport, to €80 per
night and for a maximum of three nights. Carriers shall pay particular attention to the
needs of disabled persons, persons with reduced mobility and any accompanying
persons.225
However, carriers may not provide payment of compensation for passengers if the
cancellation or delay occurs due to weather conditions endangering the safe opera-
tion of the ship or due to extraordinary circumstances226 that could not have been
avoided even if all reasonable measures had been taken.227
In case of accidents, the liability of the carrier is under Regulation 392/2009,
jointly with the provisions of the Athens Convention set out in Annex I of the
223
Idem, Art 18 (1) (a) (b) (2) (3).
224
Idem, Art 19 (1) (a) (b) (c) (d).
225
Idem, Art 17 (1) (2) (3).
226
Idem, Recital (19): The Court of Justice of the European Union has already ruled that problems
leading to cancellations or delays can be covered by the concept of extraordinary circumstances
only to the extent that they stem from events which are not inherent in the normal exercise of the
activity of the carrier concerned and are beyond its actual control. It should be noted that weather
conditions endangering the safe operation of the ship are indeed beyond the actual control of the
carrier. Note: ECJ 31.01.2013 C-12/11, ruled that ‘extraordinary circumstances’ within the meaning
of Regulation 261/2004 do not release air carriers from their obligation to provide care. See also
particular comment in the heading: Contracts of carriage of passenger by air.
227
Idem, Recital (14) and Art 20 (3) (4).
Regulation and its extension Protocol on behalf of the International Maritime

Organization (IMO) Guidelines set out in Annex II. The liability of the carrier is
limited to death and personal injury to persons and to loss of, or damage to, luggage
and vehicles.
Death or personal injury caused to a passenger by a shipping incident228 makes
the carrier liable to a limit of 250,000 units of account (SDR). The carrier may
declare it void, proving that the incident (a) resulted from an act of war, hostilities,
civil war, insurrection or a natural phenomenon of an exceptional, inevitable and
irresistible character or (b) was wholly caused by an act or omission done by a third
party with the intent to cause the incident. If the loss exceeds the above limit, the
carrier shall be further liable unless proved that the loss occurred without his fault or
neglect.229
What is more, if death or personal injury is caused to a passenger not by a
shipping incident but because of the carrier’s fault or neglect, the carrier is liable
too. However, the burden of proving fault or neglect shall lie with the claimant.230 In
addition, if the carrier proves that the death or personal injury to a passenger, or the
loss or damage to his luggage, occurred due to passenger’s fault or neglect, the court
shall seize the case and may exonerate the carrier wholly or partly from his
liability.231
The liability of the carrier for the loss of or damage to luggage and vehicles is also
limited. Annex I of the Regulation divides the liability into the following: (1) to
cabin luggage, which shall in no case exceed 2250 SDR per passenger, per carriage;
(2) to vehicles, including all luggage carried in or on the vehicle, which shall in no
case exceed 12,700 SDR per vehicle, per carriage; (3) to luggage other than that
mentioned above, which shall in no case exceed 3375 SDR per passenger, per
carriage. There will be deductions in the case of loss or damage to other luggage.232
Any contractual provision purporting to relieve liability or to prescribe a lower limit
of liability than that fixed by Annex I (Convention) of Regulation 392/2009 shall be
null and void, but the nullity of that provision shall not render void the contract of
carriage, which shall remain valid.233
228
Regulation (EC) 392, 2009, Annex I, Art 3 (5) (a): ‘shipping incident’ means shipwreck,
capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship.
229
Idem, Annex I, Art 3 (1) (a) (b).
230
Idem, Annex I, Art 3 (2).
231
Idem, Annex I, Art 6.
232
Idem, Annex I, Art 8 (1) (2) (3) (4).
233
Idem, Annex I, Art 18.
3.4.2 Contract of Car Rental
Currently, there is no specific legislation in Europe that expressly targets the contract
of car rental. Usually, only when included in a ‘package travel contract’ is car rental
service considered a travel component (hotel, car rental and the like).234 Directive
2006/123/EC on services in the internal market covers also services concerning car
rental under the general law concept.235
There are, however, few discussions on whether to classify ‘car rental’, in a strict
sense, as a service or as a facility since the supplier offers only the car to be used as
the object of the contract without additional services such as a driver. To analyse
further, however, one should consider that the consumer traveller gets not solely a
car but a car that is fuelled, reconditioned and cleaned prior to the service. Car rental
agencies may offer sophisticated online services to the consumer traveller. Often, the
company tracks the car to ensure the parties to the contract are protected against
risks. All this suggests that the contract of car rental may not simply be a matter of
facility, but more a matter of service.
In essence, the contract of car rental is considered a single service, but it does not
mean that the service is not included in contracts compiled by combined services
such as the package travel contract or linked travel arrangements.
The CRD stresses that car rental is a service, and therefore consumers should
benefit from the protection afforded by such a Directive, with the exception of the
right of withdrawal.236 In this regard, the CRD sets forth in Article 16 (l) on
‘Exceptions from the right of withdrawal’ that if the contract provides for a specific
date or period of performance, the car rental service is excluded.
The explanation for the exclusion is found in the CRD, which states that the
granting of a right of withdrawal to the consumer could also be inappropriate in the
case of certain services where the conclusion of the contract implies the setting aside
of capacity, which, if a right of withdrawal were exercised, the trader may find
difficult to fill.237
The next topic, ‘Contract of Accommodation’, examines the exclusion of the
right of withdrawal related to the same framework as applied to the contract of car
rental.
3.4.3 Contract of Accommodation
Unlike the Paris Convention of 1962 on the Liability of Hotel-Keepers, outside the
area of unfair commercial practices, timeshare, package travel and linked travel
234
IP/A/IMCO/ST/2011-17 (2012), p. 22.
235
236
237
Idem, Recital (49).
arrangements, jurisdiction and general consumer and contractual law, currently there
is no specific legislation in Europe that expressly targets accommodation. However,
many rules of general contract and consumer law in fact are applicable to the contract
of accommodation for non-residential purposes.
Whereas the use of innovative types of vacation home ‘ownership’ under
timeshare arrangements presents additional challenges in terms of their classifica-
tion,238 the legal assessment of this contract is usually addressed in a unique
approach that places the timeshare contract outside of the scope of the contract of
accommodation. Directive 2008/122/EC on the protection of consumers in respect of
certain aspects of timeshare, long-term holiday product, resale and exchange con-
tracts prescribes the specificities of such a different mode of timeshare contract.
As it happens, the main legislation amongst other particular provisions tackling
contracts of accommodation is the Consumer Rights Directive (CRD), valid since
13 June 2014.239 It applies to any contract concluded between a trader and a
consumer, including rental of accommodation for non-residential purposes.240 Addi-
tionally, in regard to general contractual obligations, which accounts for the majority
of contracts in B2C mode, the following legislation may also apply: Regulation
593/2008 on the law applicable to contractual obligations (Rome I), which replaced
the 1980 Rome Convention; Regulation (EU) 1215/2012 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters, which
repealed Brussels I Regulation (EC) 44/2001; Directive 2006/123/EC on services in
the internal market; Directive 2000/31/EC on certain legal aspects of information
society services, in particular electronic commerce; Directive 93/13/EC on unfair
terms in consumer contracts; as well as Directive 2005/29/EC on unfair business to
consumer (B2C) commercial practices.
The contract of accommodation for non-residential purposes is obviously a
‘service contract’. The contract shall entitle the consumer to use an overnight
accommodation, including a clean bed every night, clean towels and sheets in the
condition that the room and the hotel structure must maintain in a clean manner at
least concerning certain standards not harmful to health. It means that by nature, the
contract of accommodation usually includes facilities in a ‘service contract’.
In essence, the contract of accommodation comprises a contract of single service,
but it does not mean that the service may not be included in contracts compiled by
combined services such as those covered by the Directive on package travel and
linked travel arrangements. However, the CRD excluded from its provisions con-
tracts relating to package travel,241 as well as timeshare contracts.242
238
UNWTO, United Nations World Tourism Organization (2010), p. 13.
239
Directive 2011/83/EU, Art 28: Member States shall adopt and publish, by 13 December 2013,
the laws, regulations and administrative provisions necessary to comply with this Directive.(. . .)
They shall apply those measures from 13 June 2014.
240
Idem, Recital (26).
241
Idem, Recital (32) and Art 3 (3) (g).
242
Idem, Recital (32) and Art 3 (3) (h).
Although the CRD does not expressly define contract of accommodation, such a
notion stems from variations amongst other concepts defined in the Directive; for
example ‘service contract’,243 ‘distance contract’244 and ‘off-premises contract’245
provide some basis for interpretations of the contract of accommodation.
Thus, contract of accommodation is a ‘service contract’. There are different
information duties as concerns ‘distance contract’ or ‘off-premises contract’. On
those contracts, the simultaneous physical presence of the trader and the consumer
is the core point. That is to say, whilst ‘distance contract’ is performed without the
simultaneous physical presence of the trader and the consumer, i.e. by means of
distance communication (usually the Internet or telephone), on the other hand ‘off-
premises contract’ is concluded with the simultaneous physical presence of the
trader and the consumer but can be done outside of the business premises of the
trader. Even if the trader issues an offer outside the trader’s office and the consumer
accepted it and later the parties concluded the contract at the trader’s office, it is still
an ‘off-premises contract’. Therefore, ‘distance contract’ and ‘off-premises contract’
are variations of a ‘service contract’ rather than a contract itself.
In this respect, the information requirements provided for in the CRD should
suplement the information requirements of Directive 2006/123/EC on services in the
internal market and Directive 2000/31/EC on certain legal aspects of information
society services, in particular electronic commerce, in the Internal Market (Directive
on Electronic Commerce).246
Consequently, accommodation service providers for non-residential purposes,
such as hotels, motels, hostels, resorts or similar businesses, shall comply with the
information requirements, in particular on pre-contractual information duties. That is
to say, the information requirements found in CRD to service contracts,247 distance
contracts and off-premises contracts248 apply to contracts of accommodation for
non-residential purposes.
243
Idem, Art 2 (6): ‘“service contract” means any contract other than a sales contract under which
the trader supplies or undertakes to supply a service to the consumer and the consumer pays or
undertakes to pay the price thereof’.
244
Idem, Art 2 (7): ‘“distance contract” means any contract concluded between the trader and the
consumer under an organised distance sales or service-provision scheme without the simultaneous
physical presence of the trader and the consumer, with the exclusive use of one or more means of
distance communication up to and including the time at which the contract is concluded’.
245
Idem, Art 2 (8): ‘“off-premises contract” means any contract between the trader and the
consumer: (a) concluded in the simultaneous physical presence of the trader and the consumer, in
a place which is not the business premises of the trader; (b) for which an offer was made by the
consumer in the same circumstances as referred to in point (a); (c) concluded on the business
premises of the trader or through any means of distance communication immediately after the
consumer was personally and individually addressed in a place which is not the business premises
of the trader in the simultaneous physical presence of the trader and the consumer; or (d) concluded
during an excursion organised by the trader with the aim or effect of promoting and selling goods or
services to the consumer’.
246
Idem, Recital (12).
247
Idem, Art 5 (1) (a) (b) (c) (d) (e) (f).
248
Idem, Art 6 (1) (a) (b) (c) (d) (e) (f) (g) (h) (k) (m) (n) (o) (p) (q) (t).
If the contract is concluded in the place of business of the trader before the
consumer is bound by the contract, or any corresponding offer, the trader shall
provide the consumer with the pre-contractual information. These are the main
characteristics of the service, the identity of the trader, the total price, the duration
of the contract, the conditions of after-sales services and commercial guarantees,
where applicable.249
These information are in line with the other requirements of the EU law.250
Particularly concerning digital services, the service provider shall make available
to the recipient of the service (the consumer) appropriate, effective and accessible
technical means, allowing him to identify and correct input errors prior to the placing
of the order.251
Likewise, if the contract is concluded off-premises (for example, at a trade fair,
where usually businesses—hotels, motels, resorts, and the like—show and sell their
services), the trader must give the information on the paper to the consumer.
A significant exclusion in respect of distance and off-premises consumer con-
tracts is the right of withdrawal. The CRD excluded contracts of accommodation
from the provisions of Articles 9 to 15.252 The CRD clarifies that the granting of a
right of withdrawal to the consumer could also be inappropriate in the case of certain
services where the conclusion of the contract implies the setting aside of capacity,
which, if a right of withdrawal were exercised, the trader may find difficult to fill.
This, for example, is the case where reservations are made at hotels or for holiday
cottages or cultural or sporting events.253
Furthermore, the CRD excluded from its provisions, amongst others, package
travel, timeshare and passenger transport services,254 driving the conclusion that
regarding these matters, the right of withdrawal does not follow the general rule on
consumers’ rights but shall be regulated by special legislation.
3.4.4 Timeshare Contract
Timeshare contracts are regulated not only by Directive 2008/122/EC on the pro-
tection of consumers in respect of certain aspects of timeshare, long-term holiday
product, resale and exchange contracts but also by other pieces of legislation such as
Regulation (EEC, Euratom) 1182/71 determining the rules applicable to periods,
dates and time limits; Regulation 593/2008 on the law applicable to contractual
obligations (Rome I), which replaced the 1980 Rome Convention; Regulation
249
Idem, Art 5 (1) (a) (b) (c) (d) (e) (f).
250
Directive 2006/123/EC, Art 22, (1) (b) (c) (d) (e) (f) (g) (h) (k).
251
Directive 2000/31/EC, Art 11 (2).
252
Idem, Art 16 (l).
253
Idem, Recital (49).
254
Idem, Art 3 (g) (h) (k).
864/2007 related to non-contractual obligations (Rome II); Regulation (EU) 1215/

2012 on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, which repealed Brussels I Regulation (EC) 44/2001; Regulation
2006/2004 on consumer protection cooperation; Directive 93/13/EC on unfair terms
in consumer contracts; as well as Directive 2005/29/EC on unfair business to
consumer commercial practices.
The cornerstone of timeshare contract is Directive 2008/122/EC. It replaced
Directive 94/47/EC mainly because the sale and resale of timeshares and long-
term holiday products, as well as the exchange of rights deriving from timeshare
contracts, were not covered by the former Directive. Additionally, some subjects
covered by the first Directive needed to be updated and clarified.255
Although the tendency of the Directive was to harmonise certain aspects of the
marketing, sale and resale of timeshares and long-term holiday products, as well as
the exchange of rights deriving from timeshare contracts,256 it left to Member States
one of the most significant legal classifications regarding the nature of the timeshare
rights.257 That is to say, the Member States may define whether the right referring to
timeshare ownership is about a real property right (right in rem) or tenancy (personal
right—right in personam). The Directive allows for covering of a wide range of
timeshare variants taking into account the legal diversity of the Member States where
timeshares are sometimes regarded as real property (e.g., Italy, Spain, Portugal) and
sometimes as a right of tenancy (Greece).258 However, such legislative choice
strayed significantly from what is meant to be the legal framework for timeshare.
In this case, the identification of the law applicable will depend on the nature of
the contract pertaining to private law. As mentioned, the Directive did not provide a
legal orientation as to the grounds of the rights. For instance, if the nature of the right
granted by the timeshare contract under national law is conceived as right in rem
(property right), it turns out that the right is an erga omnes obligation and therefore
enforceable not only upon contractual parties but also against any other third party.
More precisely, any action based on a proprietary right has effect against the whole
world and not only on a personal right, which only affects particular persons and
involves a contractual obligation.
In other words, whilst property right implies right in rem (mandatory rules) with
different kinds of remedies (e.g., enforcing eviction from the property), right of
tenancy implies contractual law rules (personal obligations) comprising other
255
Idem, Recital (1) (2) (3).
256
Idem, Recital (3), ‘(. . .) should be fully harmonised. Member States should not be allowed to
maintain or introduce in their national legislation provisions diverging from those laid down in this
Directive.’
257
Idem, Art 1, (2): ‘(. . .)This Directive is without prejudice to national legislation which: (d) relates
to the determination of the legal nature of the rights which are the subject of the contracts covered by
this Directive.’
258
COM (2007) 303 final, p. 10 (3.2) ‘The legal nature of timeshare.’
remedies such as enforcing payment for damages insofar as tenancy imposes a duty
to repair the property.
Moreover, timeshare contracts in an exchange system that may allow the con-
sumer to exchange his or her rights on overnight accommodation and other services
with other persons are controlled not by the consumer but in some cases by a third
party different from the one who sold the timeshare rights to the consumer. There-
fore, the consumer may not exercise the rights of the prior contract against a third
person, but only the rights granted by the new contract of exchange. Consequently, it
is extremely difficult in a particular way that a consumer right (like the timeshare
right) will cope with a right in rem, mainly because of this dependency of a third
party.
As a result, such different pictures of sources of law may create distortion when
addressing timeshare contract through the framework of travel and tourism contracts,
which are neither embedded with right in rem nor with tenancy obligation, but
timeshare is under the classification of consumer contracts259 with tourism aspect.260
In this context, though timeshare contract was expressly excluded from the
Consumer Rights Directive (CRD),261 it is considered as a consumer contract, and
provisions on consumer rights shall be taken into account. For example, consumer
contracts are governed by Article 6 of Rome I Regulation on contractual obligations,
which will apply in line with Article 22 of Brussels I Regulation on jurisdiction in
determining the law applicable to the contract of timeshare.
It turns out that, so far, the answer to the nature of timeshare rights depends on the
legal culture of each Member State rather than an EU law, to which was left certain
minimum requirements to be worked out by legislation. The Directive provides for
the protection of consumers in respect of, amongst others, pre-contractual informa-
tion, the language of the contract, the right to withdraw from the contract within a
minimum period of 14 days and ban on advance payments during this period.
There are two definitions in the Directive for the first formation of timeshare
contracts: ‘timeshare contract’262 and ‘long-term holiday product contract’.263 The
difference between them seems to depend on some elusive mix of both forms of
259
Regulation (EC) 2006, 2004, Art 3 (a): “laws that protect consumers’ interests” means the
Directives as transposed into the internal legal order of the Member States and the Regulations listed
in the Annex; ANNEX Directives and Regulations covered by Art 3(a): (. . .) (7) Directive 94/47/EC
of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers
in respect of certain aspects of contracts relating to the purchase of the right to use immovable
properties on a timeshare basis (OJ L 280, 29.10.1994, p. 83), the latter was repealed by Directive
2008/122/EC.
260
Directive 2008/122/EC, Recital (2): ‘(. . .) Since tourism plays an increasingly important role in
the economies of the Member States, greater growth and productivity in the timeshare and long-
term holiday product industries should be encouraged by adopting certain common rules.’
261
Directive 2011/83/EU, Art 3 (3) (h).
262
Idem, Art 2 (1) (a).
263
Idem, Art 2 (1) (b).
contracts because both forms target in the first instance an accommodation. In a

practical way, these contracts might also be combined into one contract.264
The scope of the contract is to provide the consumer with rights to use immovable
property or properties265—the timeshare usage rights—within the schemes of the
‘timeshare contract’ to obtain one or more overnight accommodation and/or the
‘long-term holiday product contract’ to obtain discounts or other benefits. As already
mentioned, the property is the target of the contract and might be addressed to one
specific immovable property like a particular resort in the mountains or movable like
a cruise ship.266 It might also be possible that the contract targets properties
comprising a pool of accommodation,267 such as immovable (multi-resorts) or
movable (cruise lines), where the consumer can then book accommodation on that
pool according to availability.
Whereas the contract is neither a single service nor a combined service solely, it
presents additional challenges in terms of its classification. That is to say, the
Directive carved the term ‘ancillary contract’ rather than ‘combined services’. In
essence, although ‘ancillary contract’ comprises more than one service, it is not a
combination of services in the wording of the Directive. The Directive did not
provide a reference indicating a combination of those services. It sets forth that
‘ancillary contract’ means a contract under which the consumer acquires services
that are related to a timeshare contract or long-term holiday product contract and that
are provided by the trader or a third party on the basis of an arrangement between
that third party and the trader.268
Moreover, although the timeshare Directive did not exclude the PTD, its Recital
(8) expressly sets forth that its provisions should not affect the provisions of the
PTD, inferring that the two shall act separately from each other.
In a strict sense, timeshare contract targets a holiday property269 to obtain one or
more overnight accommodation for more than one period of occupation in a specified
period of the year, and the duration of the contract is for one year or longer.270
264
OPINION ECJ C-73/04 (2005), III (9): ‘The contract, which was headed ‘request for and
contract of membership’, also provided that the Kleins would become members of the Sun Beach
Holiday Club. This was a necessary condition of the conclusion of the contract: it was not an
option to conclude the contract without becoming a member of the club. Contracting parties
also had the right to the standard services provided by the hotel itself to club members and to other
guests, such as reception and bureau-de-change services.’
265
Directive 2008/122/EC, Annex I, Part.3 (2): ‘Information on the properties’.
266
Idem, Art 1 (2) (b): ‘relates to the registration of immovable or movable property and
conveyance of immovable property’.
267
Idem, Annex I, Part.3 (1): ‘Information about the rights acquired – (. . .) accommodation to be
selected from a pool of accommodation (. . .).’ See also, OPINION ECJ C-270/09 (2010), I-13194
(2) (c): ‘the properties comprising the pool of accommodation may change between the time when
Points Rights are acquired and the time when Points are redeemed for the right to occupy a
property’.
268
Directive 2008/122/EC, Art 2 (1) (g).
269
COM (2007) 303 final, p. 3 (1).
270
Directive 2008/122/EC, Art 2 (a).
The contract is neither multiple reservations of accommodation, including hotel

rooms, nor ordinary lease contracts, whereas multiple reservations do not imply
rights and obligations beyond those arising from separate reservations, and on the
other hand lease contracts refer to one single continuous period of occupation and
not multiple periods like what occurs in timeshare contracts.271
Before the consumer is bound by any contract or offer accepted, the trader shall
provide the consumer, in a clear and comprehensible manner, accurate and sufficient
information. This pre-contractual information includes standard information272
like information relating to the parties, the nature and content of the rights, price,
costs, summary of the key services available and other general information.
Member States shall ensure that the contract is in writing, on paper or any other
durable medium and drawn up in the language or one of the languages of the
Member State in which the consumer is resident or a national, at the choice of the
consumer.273
Moreover, in the case of a timeshare contract concerning one specific immovable
property located in a country other than the consumer’s residency, the trader shall
additionally provide to the consumer a certified translation of the contract. The
translation shall be done in the language or one of the languages of the Member
State in which the property is situated. It shall be an official language of the
Community.274
After signing the contract, the consumer shall be given a period of 14 calendar
days to withdraw from the timeshare contract without giving any reason to the
trader.275 During this period, it is forbidden to make any advance payment,
provision of guarantees, reservation of money on accounts, explicit acknowledge-
ment of debt or any other consideration to the trader or to any third party by the
consumer.276 Where the consumer exercises the right of withdrawal, he or she shall
neither bear any cost nor be liable for any value corresponding to the service
concluded before withdrawal.277
Long-term holiday product contract targets holiday discount clubs where
consumers pay, for instance, an entry fee to receive ‘attractive discounts’ on holiday
accommodation. It may occur in isolation or together with travel or other services,278
such as flights and rental cars, and only if specified in the contract, further additional
payments, including any membership fee, is divided into yearly instalments
according to the contractual schedule. If the payment is predicted in the contract
271
Idem, Recital (6).
272
Idem, Annex I, Part.1, 2 and 3 (1-6).
273
Idem, Art 5 (1).
274
275
Idem, Art 6.
276
Idem, Art 9.
277
Idem, Art 8 (2).
278
Directive 2008/122/EC, Art 2 (1) (b).
but is not part of the contractual schedule arranged in advance, it is forbidden.279 The
duration of the contract is for 1 year or longer.280
This type of contract is not understood as covering ordinary loyalty schemes,
which provide discounts on future stays in the hotels of a hotel chain. This is because
the membership is not paid in advance for obtaining discounts or other benefits in
respect of accommodation.281 Such kind of membership means an alternative way
for businesses to attract the loyalty of consumers. For long-term holiday products,
such as holiday discount clubs, the entry fee may be lower than the price to be paid
for timeshare, but the payments to be made for each of the actual stays may be higher
than the annual management fee paid by timeshare owners.282
In this modality of contract, the payment shall be made exclusively according to a
staggered payment schedule, not differently. The payments, including any member-
ship fee, shall be divided into yearly instalments, each of which shall be of equal
value. The trader shall send a written request for payment, on paper or on any other
durable medium, at least 14 calendar days in advance of each due date. From the
second instalment payment onwards, the consumer may terminate the contract
without incurring any penalty by giving notice to the trader within 14 calendar
days of receiving the request for payment of each instalment. This right shall not
affect rights to terminate the contract under existing national legislation.283
The ‘resale contract’ and ‘exchange contract’: these are ‘modalities of con-
tracts’ particularly noteworthy in the Directive. That is to say, they are subsequent
changes to the ‘timeshare contract’ and ‘long-term holiday product contract’ and
may not be formed without those previous agreements.
Whilst resale is a contract under which a trader assists a consumer to sell or buy a
timeshare or a long-term holiday product,284 the ‘exchange contract’ is a contract
under which a consumer joins an exchange system that may allow him or her to
exchange his/her rights on overnight accommodation and other services with other
persons.285 Resale refers to contracts for mediation. It means that the consumer can
sell the entire primary contract. For example; a consumer wishing to sell his/her
timeshare contract enters into another contract, the resale contract, with a resale
agent to sell the whole contract; on the other side, the exchange refers to the
possibility of exchanging the rights in terms of time or location.286 Contracts for
resale normally involve a one-off fee covering, for instance marketing costs and
administrative costs for the resale, which the consumer must often pay upfront; on
279
Idem, Art 10 (1).
280
Idem, Art 2 (b).
281
Idem, Recital (7).
282
COM (2007) 303 final, p. 2 (2).
283
Idem, Art 10 (1) (2).
284
Idem, Art 2 (1) (c).
285
Idem, Art 2 (1) (d).
286
COM (2007) 303 final, p. 7 (2.4).
the contrary, if the consumer joins an exchange scheme, costs in the form of annual
membership fees and/or a separate fee related to each exchange will apply.287
The contracts give rise to substantial financial commitments for consumers, with
a global initial payment followed by annual payments (the size of which depends on
the type of accommodation offered, the season and modalities of the service) for the
duration of the contract.288
The legislation covers a variety of rights allowing the rotating use of immovable
and movable properties, including other services, but targeting the main service of
accommodation.
3.4.5 Travel Contract
In the wording of Directive 2015/2302/EU on package travel and linked travel

arrangements, travel contract mainly includes two forms: (1) combined travel ser-
vices by packages, which is a combination of at least two different types of travel
services purchased for the same trip or holiday,289 and (2) linked travel arrangements
(LTA), which though corresponds to at least two different types of travel services
purchased for the purpose of the same trip or holiday does not constitute a package,
resulting in the conclusion of separate contracts with the individual travel service
providers.290 The LTA applies when the traveller visits or contacts a point of sale
and selects and pays for each service separately.291
Additionally, the contract is regulated according to provisions of any of the
following sources of law: Regulation 864/2007 related to non-contractual obliga-
tions (Rome II); Regulation 593/2008 on the law applicable to contractual obliga-
tions (Rome I); Regulation (EU) 1215/2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, which repealed Brussels
I Regulation (EC) 44/2001; Regulation 2006/2004 on consumer protection cooper-
ation; as well as a few other provisions extracted from legislation like Directive
93/13/EC on unfair terms in consumer contracts, Directive 2005/29/EC on unfair
business to consumer commercial practices and Directive 2006/123/EC on services
in the internal market may also apply.
Interestingly, the Consumer Rights Directive excluded contracts on package
travel,292 but Directive 2015/2302/EU refers to the Consumer Rights Directive in
cases of linked travel arrangements.293 Therefore, Directive 2011/83/EU on
287
Idem, p. 11 (3.3).
288
Idem, p. 2 (2).
289
290
Idem, Art 3 (5).
291
292
Directive 2011/83/EU, Art 3 (g).
293
Directive 2015/2302/EU, Recital (48): ‘ (. . .)it is necessary to amend Directive 2011/83/EU to
ensure that it continues to apply to individual travel services that form part of a linked travel
consumer rights is one of the sources of law in relation to the travel contract on
matters not covered by the Directive 2015/2302/EU.
Though Directive 2015/2302/EU avoided using the term ‘combination’ or ‘com-
bined’ to define LTA in Article 3 (5), it is obvious that the term combination is
implicit in that definition. In this regard, Recital (17) highlights that ‘Only the
combination of different types of travel services, such as accommodation, carriage
of passengers by bus, rail, water or air, as well as rental of motor vehicles or certain
motorcycles, should be considered for the purposes of identifying a package or a
linked travel arrangement’.
Beyond the term combination, which ceased to be an exclusive discrimen to
define a ‘package’ and now identifies linked travel arrangements, the Directive
decided to split the package’s definition into a range of elements that in a broad
sense overlap and interact with the definition of LTA. That is to say, to classify a
travel contract, the Directive distinguishes between ‘package travel contract’ and
‘LTA’, where both includes separate contracts,294 individual travel services pro-
viders295 and a single point of sale.296 See Flowcharts 1 and 2.
It turns out that whilst LTA includes only separate contracts,297 package, on the
other hand, may include both single contract298 or separate contract.299
Noting that LTA is not a package but some sets of LTA’s elements are found in
the concept of package, the main question is how to identify a real discrimen
between them. In fact, while the Directive became more sophisticated, the definition
of package became more complex and more difficult to perceive. Thus, taking into
account that both forms include separate contracts, what appears reasonable to
determine is ‘payment’, which also discloses a discrímen.
This is because whilst in ‘package’ the traveller may select the service(s) in a
single point of sale before agreeing to pay300 at an inclusive or total price,301 in LTA
it is different. In LTA, the traveller also selects travel services in a single visit or
contact with a trader’s point of sale but will pay separately for each travel service,302
which is provided by another trader.303 Another discrimen concerns advertisement.
If the travel services are advertised or sold under the term ‘package’304 or under a
arrangement, insofar as those individual services are not otherwise excluded from the scope of
Directive 2011/83/EU, and that certain consumer rights laid down in that Directive also apply to
packages’.
294
Idem, Art 3 (2) (b) for Package, and Art 3 (5) for LTA.
295
Idem, Art 3 (2) (b) for Package, and Art 3 (5) for LTA.
296
Idem, Art 3 (2) (b) for Package, and Art 3 (5) (a) for LTA.
297
Idem, Art 3 (5).
298
Idem, Art 3 (3).
299
300
Idem, Art 3 (2) (b) (i).
301
Idem, Art 3 (2) (b) (ii).
302
303
304
Idem, Art 3 (2) (b) (iii).
similar term such as ‘combined deal’, ‘all-inclusive’ or ‘all-in arrangement’,305 it is a

‘package’ not an LTA. Moreover, whilst ‘linked travel arrangements – LTA’ is not a
package,306 a ‘linked online booking process – LOBP’ can qualify as a package.307
To get a glimpse of what LOBP means, Recitals 9 and 13 of the Directive provide
that the purpose of LOBP is to facilitate the procurement of at least one additional
travel service from another trader within 24 h after the first booking. Such facilitation
is based on a commercial link amongst traders, whether through the number of clicks
or turnover.
What is the essence of LOBP? It is the way that businesses operationalise the
purchasing. From the Directive stems two ways in which LOBP can happen: (1) as a
subset of package (Article 3 (2) (v)), meaning a kind of ‘click-through booking’
based on a businesses’ partnership where traveller’s personal data are transferred
between traders in order to conclude another contract, offered, sold or charged at an
inclusive or total price within 24 h after the confirmation of the first travel service,
and (2) as a subset of linked travel arrangement (Article 3 (5) (b)), meaning also a
kind of ‘click-through booking’ based on a businesses’ partnership, but the personal
data are not automatically transferred and the traveller pays each travel service
separately. Through LTA, the trader facilitates 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 within 24 h after the confirmation of the booking of
the first travel service.308
In both LOBP as a subset of package and LOBP as a subset of linked travel
arrangements, business partners agree to cooperate on their mutual interests. It is
different from those travel services booked independently by travellers through
linked websites, which do not have the objective of concluding a contract with the
traveller but only provide advertisement and information on travel services in a
general way, such as a list of transport services. These are neither ‘package’ nor
LTA.309
‘Packages’ and ‘LTAs’ may have different implications. The traditional ‘package
travel contract’ benefits from full consumer protection, meaning that the organiser is
responsible for the performance of all travel services included in the package.
Consequently, the LOBP in the way of package provides the same full consumer
protection as what the traditional package provides. Conversely, in LTA and its
305
Idem, Recital (10).
306
Idem, Art 3 (5): ‘linked travel arrangements’ 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 payment of each travel service providers, if a trader facilitates.
307
Idem, Art 3 (2) (b) (v): purchased from separate traders through linked online booking
processes where the traveller’s name, payment details and e-mail address are transmitted from
the trader with whom the first contract is concluded to another trader or traders and a contract with
the latter trader or traders is concluded at the latest 24 h after the confirmation of the booking of the
first travel service.
308
Idem, Recital (13).
309
Idem, Recital (12).
LOBP subset, consumer protection is reduced, but the organiser needs to offer
assistance in case of repatriation of travellers in the event of insolvency.310 The
latter provides less consumer protection in comparison with the package itself or
with the LOBP in the way of package.
On the other hand, the purchase of a travel service on a stand-alone basis as a
single travel service should constitute neither a package nor a linked travel arrange-
ment,311 and the protection falls on other directives. See Table A1 in Annexes.
In summary, though the current directive in terms of travel contract is an
achievement bringing the consumer traveller to the new era of ‘e-consumer’, it
seems difficult to envisage that the traders will succeed to comply in a plain manner
with its requirements, mainly in regard to LOBP in the form of package and/or in the
form of LTA. From the traveller’s perspective, if the traders fail to inform clearly and
prominently whether they are offering a package or a linked travel arrangement as
requested by the directive,312 the payment at a total price (package) or a separate
payment (LTA) is one way to identify the facilitation of the procurement of travel
services.
3.4.6 Standard Contract
Standard contract is the EU terminology for the contract of adhesion (Brazilian

terminology). It is also known as a pre-formulated standard contract or standard form
contract. If the seller or supplier claims that a standard term has been individually
negotiated, the burden of proof in this respect shall be incumbent on him.313
Directive 93/13/EEC on unfair terms in consumer contracts stipulates when a
contract term shall be regarded as not individually negotiated (Article 3 (2)) and
therefore submitted to control according to the Directive.
Although it is a named contract, it is in fact a method of contracting or a
contracting model for improving efficiency of the business.
A large number of standard contracts are used in all Member States to facilitate
economic transactions. These contracts spare parties the need to negotiate the
contract terms individually for every single transaction and provide a degree of
certainty to the parties. It supposed that the rights and obligations of the parties may
be clearly identified. However, the standard contract, because of its one-sided
characteristics, may easily exclude essential consumer rights or include unfair
terms without the consumer’s consent. The contract is developed by one of the
contracting parties where a single contracting party possesses sufficient bargaining
310
Idem, Recital (14).
311
Idem, Recital (15).
312
Idem, Recital (16).
313
power to impose its contract terms. Thus, if the consumer cannot influence the
content of the terms, there is no party autonomy.
But such a lack of negotiation may increase consumer vulnerability in view of to the
fact that whilst the consumer believes that he or she is protected by a contract, he/she,
in fact, may not be as the contract may have been drafted to exclude the consumer’s
rights. Yet the standard contract becomes a source of the potential vulnerability of both
parties. The complex, ambiguous or contradictory terms can amplify vulnerability.
Thus, a contractual term that has not been individually negotiated shall be
regarded as unfair if, contrary to the requirement of good faith, it causes a significant
imbalance in the parties’ rights and obligations arising under the contract, to the
detriment of the consumer. A term shall always be regarded as not having been
individually negotiated where it has been drafted in advance and the consumer has
not been able to influence the substance of the term particularly in the context of a
pre-formulated standard contract. Even if one specific term or certain aspect of it has
been individually negotiated, the rest of the contract still remains within the scope of
the Unfair Terms Directive.314
It is particularly noted that when contracts where all or certain terms offered to the
consumer are in writing, these terms must always be drafted in plain and intelligible
language. Where there is doubt about the meaning of a term, the interpretation most
favourable to the consumer prevails.315 It is the principle of the most favourable
interpretation of contractual provisions.
These contracts usually especially limit the consumer’s rights through forum
selection terms and choice of law terms. As it happens, there are restrictions on the
choice of law for businesses-to-consumer transactions found in the Rome I Regula-
tion, meaning that if the parties choose the law of another Member State rather than
the consumer law of the consumer’s habitual residence, such a choice may, under the
conditions of Article 6 (1) of the Rome I Regulation, not deprive the consumer of the
protection of the mandatory provisions of the law of his habitual residence.316
The proposal for a Regulation on a Common European Sales Law intends to
introduce by means of Article 2 (d) a legal concept for ‘standard contract terms’. The
provision further sets forth: ‘It means contract terms which have been drafted in
advance for several transactions involving different parties, and which have not been
individually negotiated by the parties within the meaning of Article 7 of the
Common European Sales Law.’317
314
Idem, Art 3 (1) (2).
315
Idem, Art 5.
316
317
COM (2011a) 635.
3.5 Jurisdiction 141
3.5 Jurisdiction
In Europe, the problem of ‘jurisdiction’ does not differ much from what goes for the
other legal systems in this respect. Jurisdiction relates to competence, which means
identifying which court of justice is competent to hear and decide a case or make a
certain order. It relates to the territorial limits of the court and the territorial scope of
the legislative competence of Parliament.318 The question of which court has
jurisdiction to decide a dispute arises where the disputants are located in two
different countries or where the subject matter of the dispute is connected to several
countries.
The problem is often encountered in the interpretation and application of a
statutory provision, as well as the enforcement of the judgment in another country.
Rules on jurisdiction, especially those targeted to protect consumers, are now
found in Regulation (EU) 1215/2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters, which repealed Brussels
I Regulation (EC) 44/2001.319
Brussels I Regulation was adopted on the basis of Articles 61 (c) and 67 (1) of the
Treaty Establishing the European Community. After the entry into force of the
Treaty of Lisbon, the Treaty basis for the adoption of legislative instruments
aimed at ensuring the compatibility of the rules applicable in the Member States
concerning jurisdiction are Article 67 (4) and 81 (2) (a), (c) and (e) of the TFEU.320
According to the new Regulation (EU) 1215/2012, the rules of jurisdiction must
be highly predictable and founded on the principle that jurisdiction is generally
based on the defendant’s domicile. Jurisdiction should always be available on this
ground save in a few well-defined situations in which the subject-matter of the
dispute or the autonomy of the parties warrants a different connecting factor. The
domicile of a legal person must be defined autonomously so as to make the common
rules more transparent and avoid conflicts of jurisdiction.321 It nearly repeated the
provision previously set forth by Brussels I Regulation with minimum of changes.322
In relation to consumer contracts, the weaker party should be protected by rules
of jurisdiction more favourable to his interests than the general rules.323
This leads to the following conclusion: if the plaintiff is the consumer and the
defendant is the supplier, the consumer must be protected by rules of jurisdiction
more favourable to his/her interests. Most of the time, in a large extension, the
consumer’s domicile is preferred. That is to say, the consumer can file a claim or be
sued in his/her domicile. However, as above mentioned, the law opens the possibility
for the consumer to choose rules of jurisdiction more favourable to his/her interests.
318
Oxford (2006).
319
Regulation (EU) 1215, 2012, Art 80.
320
SEC 1547 final (2010), p. 42 (5).
321
322
Regulation (EC) 44, 2001, Recital (11).
323
Thus, if the rules where the supplier is domiciled are more attractive to the interests
of the consumer, he/she may file a claim there.
Recently, the Court of Justice of the European Union on a contract of travel
concluded between a consumer domiciled in one Member State and a travel agency
established in another Member State granted the right of the consumer to bring an
action against two undertakings, the travel agency and the supplier of services,
before the court of the place of the consumer’s domicile.324 In addition, the court
clarified the point about the ‘weaker party to the contract’, stating that rules on
special jurisdiction in Article 15 et seq. of Regulation 44/2001 in matters relating to
consumer contracts are intended to protect the weaker party to the contract by
granting him the possibility to choose the court and by limiting the possibility to
conclude choice of jurisdiction clauses and that protection would be deprived of its
effectiveness if it were not possible to rely on the rights that the consumer derives
from a single booking transaction against the two contracting partners before the
court with jurisdiction under Article 16(1) of Regulation 44/2001.325
So far, Regulation 44/2001, the so-called Brussels I Regulation, still applies in
cases brought to the court up to 10 January 2015. The new Regulation 1215/2012
applies to disputes established after 10 January 2015.326 Therefore, it is too early to
find cases based on the new Regulation on jurisdiction.
Comparing both regulations, it can be said that few changes have been
implemented by the new Regulation. The content of Regulation 44/2001 was
rearranged by the new one, which basically stresses safeguards against abolishing
all intermediate measures (the exequatur) as the main focus of the new reform. Both
stressed that ‘A judgment given in a Member State shall be recognized in the other
Member State without any special procedure being required’.327 But the main
difference is that the new Regulation introduced the term ‘exequatur’ in its Recital
(2) and abolished the declaration of enforceability,328 whilst Brussels I did not.
Those intermediate measures (exequatur) are connected with the recognition and
enforcement of judgments.
3.5.1 Enforcement of Foreign Judgments
The ‘enforcement of foreign judgments’ is one of the most important issues in the
sphere of jurisdiction. Europe has 28 countries with different legal cultures on rules
324
ECJ 14.11.2013 C-478/12.
325
Idem, (20) (21) p. 5.
326
Regulation (EU) 1215, 2012, Art 81: ‘This Regulation shall enter into force on the twentieth day
following that of its publication in the Official Journal of the European Union. It shall apply from
10 January 2015, with the exception of Articles 75 and 76, which shall apply from 10 January
2014.’
327
Regulation (EU) 1215, 2012, Art 36 (1) former Regulation (EC) 44, 2001, Art 33 (1).
328
Regulation (EU) 1215, 2012, Art 39.
of jurisdiction. One step is that the court accepts the competence to hear and decide a
case. Another is to make a certain order and declare it enforceable.
The recognition of enforcement of decisions in civil and commercial matters in all
EU Member States is found on the principle of mutual recognition of judicial and
extrajudicial decisions in civil matters.329
Traditionally, a judgment given in one Member State does not automatically take
effect in another Member State. In order to be enforced in another country, the court
in that country first has to validate the decision and declare it enforceable. This is
done in a special intermediate procedure, known as ‘exequatur’, which takes place
after the judgment has been obtained.330
The intermediate exequatur procedure still makes cross-border litigation more
cumbersome, time consuming and costly than national litigation. Parties have to bear
court fees for processing the application. Often a lawyer is hired to prepare the
documentation and handle the procedure abroad. Costs of translation and service of
documents also add to the bill. The delay and costs involved in obtaining the
recognition and enforcement of cross-border judgments discourage people from
making full use of the possibilities offered to them in the internal market by doing
business and shopping in other EU countries. The time for obtaining exequatur
varies between the Member States. It can take from a couple of days up to several
months, depending on the jurisdiction and the complexity of the case.331
Whilst Brussels I required the declaration of enforceability in accordance
with the procedure laid down by the law of the Member State in which enforcement
is sought, the new Regulation 1215/2012 abolished such a declaration and
established the certificate set forth by its Article 53. Nowadays, a judgment issued
in one Member State has to be enforceable in another Member State without the
need for a declaration of enforceability; rather, it needs the certificate issued by
the court of origin. In addition, the procedure for the enforcement of judgments
given in another Member State shall be governed by the law of the Member State
addressed.332
It seems that the problem of the exequatur has yet to be carried out by the EU law.
Indeed, the certificate seems to be simpler than the declaration of enforceability as
there is a pre-formulated standard model on Annex I of the new Regulation.
However, it has not yet been taken as an automatic recognition and enforcement
of the judgment in another MS. The new Regulation enables the court of origin to
issue a European Enforcement Order in respect of a judgment with the result that the
judgment will become enforceable in other Member State without the need to obtain
an enforcement order there.
The provision of the Regulation creates the impression of an automatic recogni-
tion for it says that a judgment given in a Member State shall be recognised in the
329
Idem, Recital (3).
330
SEC 1547 final (2010), pp. 11–12.
331
Idem, p. 12.
332
Regulation (EU) 1215, 2012, Art 41 (1).
other Member State without any special procedure being required. Nevertheless, it
seems less surprising that the recognition and enforcement of the judgment in
another MS are still bureaucratic. This is because the court or authority may require
the party to provide (a) a copy of the judgment that satisfies the conditions necessary
to establish its authenticity and (b) the certificate issued by the original court (which
substitutes the declaration of enforceability). In addition, the party must provide a
translation or transliteration of the contents of the certificate. Moreover, the court
may also require a translation of the judgment if needed.333
Furthermore, there is the risk to enter into another legal discussion, whereas the
person against whom enforcement is sought can apply for refusal of the recognition
or enforcement of a judgment if one of the grounds for refusal of recognition is
presented. Basically, they are as follows: (1) if the recognition of the judgment is
contrary to public policy in the MS addressed, (2) if the judgment was given in
default of appearance, (3) if the judgment is irreconcilable with an earlier judgment
given between the same parties in the MS addressed, another MS or a third state,
(4) if the judgment conflicts with jurisdiction over consumer contract provisions set
forth in Section 4 of the Regulation or with ‘exclusive jurisdiction’ set forth in
Section 6.334
The legal discussion may go further if there is the need to clarify that the public
policy referred to in Article 45 (1) (a) may not be applied to the rules relating to
jurisdiction.335
As a result, the parties have to hire a lawyer to prepare the documentation and
handle the procedure into the court of another MS. Finally, costs of translation and
service of documents will be added to the bill. At the end, the enforcement of a
judgment in another MS is still cumbersome.
3.5.2 The Small Claims Procedure
The European procedure for small claims was set up to simplify and speed up
litigation concerning small claims in cross-border disputes. It is an alternative to
the procedures existing under the laws of the Member States to reduce litigation
costs.
The procedure enables courts to process applications entirely by means of a
written procedure, except in exceptional circumstances where a judgment cannot
be given on the basis of written evidence.336 It is done through standard forms and
free assistance for the parties in filling in the forms. Representation by a lawyer is not
mandatory, and the use of electronic means of communication is encouraged. The
333
Idem, Art 37 (1) (a) (b), (2).
334
Idem, Art 45 (1) (a) (b) (c) (d) (e) (i) (ii).
335
Idem, Art 45 (3).
336
procedure is available for use by both consumers and businesses doing cross-border
transactions in the EU.
Actually, Regulation 861/2007 Establishing a European Small Claims Procedure
sets forth a current threshold of € 2000 for cases on the basis of the simplified
procedure for civil and commercial matters, whatever is the nature of the court or
tribunal.337 As a number of Member States already increased the scope of their
national simplified procedures by raising the threshold, the EU Commission
launched a proposal to raise the current threshold up to € 10,000.338
There is no need for the consumer traveller to go to court. He or she can start the
procedure by post or by any other means of communication, such as fax or e-mail, by
filling out standard claim Form A, as Annex I of Regulation 861/2007, and lodging it
with the court or tribunal that has jurisdiction.339
The defendant has 30 days to reply, and the court or tribunal shall give a judgment
within 30 days of the defendant’s response.340
Overall, the small claims procedure works satisfactorily. However, the recogni-
tion and enforcement of the judgment in another EU MS still have barriers. That is to
say, although a judgment given in a Member State in the European small claims
procedure shall be recognised and enforced in another Member State without the
need for a declaration of enforceability and without any possibility of opposing its
recognition,341 it is still bureaucratic.
This is because the party seeking enforcement shall produce (a) a copy of the
judgment that satisfies the conditions necessary to establish its authenticity and
(b) the certificate issued by the original court (which substitutes the declaration of
enforceability). In addition, the party must provide a translation or transliteration of
the contents of the certificate.342
Actually, reasonably, the person against whom enforcement is sought can apply
for refusal of the recognition or enforcement of a judgment if it is irreconcilable with
an earlier judgment given in any Member State or in a third country where the cause
of action and the parties were the same. Under no circumstances may a judgment
given in the European small claims procedure be reviewed in its substance in the
Member State of enforcement.343
337
Idem, Art 2 (1).
338
COM (2013) 794 final (3) (3.1.1.). Note: it is not possible to predict when the new Regulation
will come into force. It will raise the current threshold up to € 10,000.
339
340
Idem, Art 5 (3) and Art 7 (1).
341
Idem, Art 20 (1).
342
Idem, Art 21 (2) (a) (b).
343
Idem, Art 22 (1) (a) (b) (c) (2).
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Tonner K, Fangerow K (2012) Directive 2011/83/EU on consumer rights: a new approach to
European consumer law? J Eur Consum Market Law 2:67–80
Tonner K, Shuster A (2005) Protecting the rights of passengers and holidaymakers. ECLG/039/05.
European Consumer Law Group, Brussels
Tonner K (1998) Consumer protection and the European Union’s tourism policy. Consum Law J
6:32–46
UNITED Nations, A/CONF.216/L.1 (2012) Rioþ20 United Nations Conference on sustainable

development. Rio de Janeiro
UNWTO, United Nations World Tourism Organization (2010) International Recommendations for
Tourism Statistics 2008. New York: Series M N 83/Rev.1
Wilhelmsson T (2005) Existiria um direito europeu do consumidor? E deveria existir? Translated
from Rome Conference 2000 by academics from University of Rio Grande do Sul. Revista dos
Tribunais 53:181–198
Yaqub Z, Bedford B (1997) European travel law. Wiley, West Sussex
Chapter 4
Analysis: Consumer, Traveller
and Vulnerability
4.1 Balance Between Businesses’ Interests and Travellers’

Interests
There is a slight confusion regarding the term ‘protection’. The law ought to protect
parties’ interests to guarantee balance in the market. However, the rules of protection
regarding business or consumers/travellers are not intertwined.
‘Travel and tourism’ is mainly tied with consumer protection. That is to say, the
principles of consumer law must be applied also for travel and tourism. Whilst
businesses are under the protection of competition law, which regulates anti-
competitive conduct by business companies, consumers are under the protection of
consumer law, whose purpose is to rectify the inequality in bargaining power
between the consumer and the supplier. Competition law and consumer law have
different protection rules.
To the consumer, the word ‘protection’ attracts ‘legal status’. It addresses the idea
of vulnerability and therefore the need of protection in view of the unequal relation-
ship between the parties.
Although the protection of competitors (antitrust law) and the protection of
consumers (consumer law) have common characteristics and are subjected to eco-
nomic progress, they operate in different ways, which offer different functionality.
Whilst competition law relates to agreements between firms, antitrust, restrictive
practices, abuse of dominant positions, mergers, damage actions, cartels, state aid
and so on, consumer law takes account of the protection of consumer’s economic
and legal interests in view of the weaker position of the consumer in the contract
concluded between the consumer and the supplier. In addition, consumer law covers
legal redress and settlement of disputes, unfair commercial practices, quality of
goods and services and so on. Therefore, their approach in the protection of the
consumer is totally different.

150 4 Analysis: Consumer, Traveller and Vulnerability
In different countries, they take different forms. But basically it is possible to

recognise in worldwide legislation a separate legal framework for both consumer
policy and competition policy.
The essence of the protection rules requires identifying the imbalance of the
relationship in a contract. Hence, the bargaining power between consumer/traveller
and the supplier/retailer is persistently unequal. Unequal bargaining power impacts
on freedom of contract and changes the real traditional freedom, which is the core
principle of private law.
The inequality of bargaining power has long been recognised worldwide by
several countries. The EU adopted consumer protection laws setting up forms of
control and thereby balancing the relationship between the two parties, the con-
sumer/traveller and the supplier/retailer, putting mandatory terms into contracts by
law. The same occurs in Brazil and other countries in South America. Inequality
results basically in one party having greater power than the other. In consumer law,
the supplier is always in a better and more dominant position than the consumer.
Conversely, tourism businesses are protected by competition law where one
business holds a dominant position in a given market and is able to abuse that
position (e.g., market sharing cartels). Actually, businesses must be protected against
the same type of legal person (another business), whilst the consumer must be
protected against another type of legal person (the supplier), where the commercial
practice in a given market counts in determining whether it is a fair or an unfair
practice.
In summary, whilst businesses must be protected against each other because of
illegal competitive practices in the market, consumers must be protected against
suppliers/retailers (businesses) in view of their lack of meaningful choice in the
terms of the contract, as in the case of a contract heavily weighted in favour of the
supplier, such as those worded on a ‘take it or leave it’ basis (the well-known
standard contract or contract of adhesion).
Consumer protection is tied with the ‘overriding reasons relating to the public
interest’. The Directive on Services sets forth that this concept has been developed
by the ECJ and may continue to evolve.1 One of the possible explanations for this is
that the balance between suppliers/businesses and consumers/travellers is only
feasible through measures protecting consumers. The consumers ought to be
protected because of the several risks they are exposed to in the actual market,
mainly abroad. These risks imply the fluidity of vulnerability.
1
4.2 Consumer and Traveller 151
4.2 Consumer and Traveller
Although the framework of consumer law is similar in Brazil and in the EU, subtle
differences in relation to their specificities exist. One of those differences is the
concept of ‘consumer’ and the concept of ‘traveller’. The consumer is a person
constructed by law. What could be more artificial than the concept of consumer or
the concept of traveller? However, whilst the law already shaped the concept of
consumer in both systems, the concept of traveller has baffled many law
practitioners.
A natural person is equally natural in both systems. There is no doubt in providing
natural persons with individual rights as a citizen or as a resident. That is a
prerogative of nature. The differences vary in the construction of a person such as
a consumer and now a traveller or even a business traveller. For example, in Brazil, a
person considered a consumer, like a bystander, is not a consumer under EU law.
The concept of consumer in Brazilian law is fragmented. It covers not only
natural person, the individual as a physical person, but also legal entity that behaves
as a final purchaser or addressee if the entity is vulnerable. The concept is not only
limited to contractual obligations but also covers victims of accidents, the so-called
bystander. Likewise, it is extended to any events connected to the consumer rela-
tionship or to unlawful acts in pre-contractual duties such as misleading advertising
and unfair commercial practices. However, a legal entity may in some situations be
regarded as a consumer, if vulnerable, but it never will be regarded as a traveller
owing to the obvious reason that although both are persons, a natural person travels
but a company (entity) does not.
Conversely, in European law, the concept of consumer is found in various
directives, such as on ‘timeshare’, ‘unfair terms in consumer contracts’, ‘unfair
business-to-consumer commercial practices’ and ‘consumer rights’. These have
adopted the same approach, where the consumer means any natural person who in
contracts covered by the respective Directive, is acting for purposes, which are
outside his trade, business, craft or profession.
The EU left Member States with the discretion to extend the application of the
rules of the Directive on Consumer Rights to legal persons or to natural persons who
are not consumers.2 This undermines the full harmonisation principle3 for the reason
that differences in the definition of consumer may exist amongst Member States;
2
Directive 2011/83/EU, Recital (13). ‘(..)Member States may therefore maintain or introduce
national legislation corresponding to the provisions of this Directive, or certain of its provisions,
in relation to contracts that fall outside the scope of this Directive. For instance, Member States
may decide to extend the application of the rules of this Directive to legal persons or to natural
persons who are not consumers within the meaning of this Directive, such as non-governmental
organisations, start-ups or small and medium-sized enterprises.’
3
Art 4: ‘Level of harmonisation, Member States shall not maintain or introduce, in their national
law, provisions diverging from those laid down in this Directive, including more or less stringent
provisions to ensure a different level of consumer protection, unless otherwise provided for in this
Directive.’
where one Member State considers a legal entity or a bystander as a consumer, the
other Member State does not. This weakens the equal applicability of the law. There
is even a peculiarity in the provisions of Recital (13) and Article 4 of the Consumer
Rights Directive concerning the full harmonisation principle, which indicate the
relativity of the principle. That is to say, both allow exceptions with the use of terms
such as ‘MS may decide’, ‘MS may also maintain or introduce national provisions’,
‘including more or less stringent provisions’, ‘unless otherwise provided for’.
Curiously, Article 4 sets forth:
Member States shall not maintain or introduce, in their national law, provisions diverging
from those laid down in this Directive including more or less stringent provisions to ensure a
different level of consumer protection (. . .)
Note that Article 4 used ‘shall not’ but at the same time made this relative by
using the words ‘more or less’. Though ‘shall not’ is a stronger expression, both
Recital (13) and Article 4 carry terms of relativity, indicating permissibility, possi-
bility or probability.
In line with the Directive on Consumer Rights, the majority of Member States
adopted a similar notion of consumer (e.g., Germany, Austria). However, France
inserted the definition of consumer into its French Consumer Code in a different
way: ‘any individual who acts for purposes which do not enter in the scope of his/her
commercial, industrial, artisanal or liberal activity.’ Such a technique left the courts
to decide whether a person should be treated as a consumer or not.
The concept of ‘travelling consumer’, introduced in the EU years ago,4 is no
longer used. Although it focuses on the consumer who travels, the concept relates to
the activity of the consumer (the adjective ‘travelling’) rather than to the traveller as a
legal person. In this context, the legal person is solely the consumer, not the traveller.
The current Directive 2015/2302/EU, however, introduced the concept of traveller
with a legal status in the EU legislation. As a result, the EU carefully stresses that the
majority of travellers buying packages or linked travel arrangements are consumers
within the meaning of Union consumer law.5
It shows that the EU lawmaker is aware that in consumer societies, it is not
feasible to exclude the traveller from the scope of the consumer law. This is to ensure
that the traveller acquires substantive rights. However, a better solution would be to
place the two terms—consumer and traveller—on equal footing, such as ‘consumer
traveller’. This would avoid extensive studies and recurrent questions like ‘Is the
traveller a consumer?’ In addition, the consumer and the traveller would share the
focus of studies on an equal basis.
Contrary to common perception, ‘consumer traveller’ is unavoidable in view of
the continued impact of the travel and tourism industry in the consumer market and
increased sophistication in the management and use of data, such as dynamic
packaging. Moreover, travel (and tourism) is a dynamic economic activity, which
4
COM (1998) 563 final and COM 1999/C 66/04.
5
4.2 Consumer and Traveller 153
unfolds in an ever-changing environment. It is expected that the legal concepts

would also follow the developments of the market.
Whilst in Brazil the concept of the consumer is wider and not limited to contrac-
tual obligations, in Europe the concept of consumer found in a couple of directives is
narrow and strictly limited to contractual obligations.
Thus, although the current Directive 2015/2302/EU splits the well-known clas-
sification between combined and single (or individual) travel services, the person
entitled to the package travel contract is the traveller rather than solely the consumer.
Yet the cornerstone of consumer law in Brazil is the type of the consumer
relationship (such as purchase of goods or services, insurance, finance, transport,
accommodation, timeshare and so on) and also the type of the consumer party
involved in the contract, whether an individual, a legal entity, a bystander or a
group of individuals.
Likewise, in the EU, the cornerstone of consumer law is the legal relationship
between the supplier and the consumer. But consumer law is divided into a range of
directives, such as timeshare, package travel, services in the internal market and
consumer rights directives, which must be transposed into the national law of the
Member States or regulations such as those on transport, contractual obligations and
jurisdiction, which are directly applicable in the Member States.
A comparative overview of the provisions of the current law, mainly the CDC in
Brazil and the EU directives, may prove relevant in the assessment of the definition
of the consumer as follows (Tables 4.1 and 4.2).
Until recently, EU directives or any other EU legislation did not explicitly
mention the traveller in a strict sense, and no specific rules pertaining to consumer
protection addressing only travellers have existed. Nevertheless, the current Direc-
tive on package travel and linked travel arrangements, which repealed Directive
90/314/EEC, introduced the concept of traveller in addition to the concept of
Table 4.1 Brazil

Act 8.078/90 CDC (Consumer Defence Code)
‘Article 2. A consumer is any natural person or legal entity who purchases or uses goods or
services as a final addressee
Sole Paragraph: The concept and status of consumers is extended to a collective of individuals,
even if they are indeterminate, who have participated in any consumer relationship.’
‘Article 17. For the purposes of this section, all victims of the event have the same rights as
consumers.’
(The section refers to liability as to the fact of the product and service.)
‘Article 29—Any person exposed to what is described in this chapter and the next will be
considered equal to consumers.’
(Chapter V refers to commercial practices, and Chapter VI refers to contract protection.)
Source: Author
Table 4.2 Europe

Directive 2011/83/EU (Consumer Rights)
‘Recital (13). Member States may decide to extend the application of the rules of this Directive to
legal persons or to natural persons who are not consumers within the meaning of this Directive,
such as non-governmental organisations, start-ups or small and medium-sized enterprises.’
‘Article 2 (1). Consumer means any natural person who, in contracts covered by this Directive, is
acting for purposes which are outside his trade, business, craft or profession;[. . .].’
Directive 2008/122/EC (timeshare)
‘Article 2 (1) (f) ‘consumer’ means a natural person who is acting for purposes which are outside
that person’s trade, business, craft or profession;[. . .].’
Directive 2005/29/EC (unfair business-to-consumer commercial practices)
‘Article 2 (a) ‘consumer’ means any natural person who, in commercial practices covered by this
Directive, is acting for purposes which are outside his trade, business, craft or profession;[. . .].’
Directive 93/13/EEC (unfair terms in consumer contracts)
‘Article 2 (b) consumer’ means any natural person who, in contracts covered by this Directive, is
acting for purposes which are outside his trade, business or profession;[. . .].’
Source: Author
consumer. It modernised the existing rules, ensuring that the majority of travellers
buying travel packages are consumers in the sense of Union consumer law.6
‘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
Directive.
This is a step forward ensuring that travellers have legal capacity. Nevertheless,
as already mentioned, the literal wording ‘traveller’ solely misguides the nature of
the consumption idea. The norm should have included some sort of reference to
consumption.
The non-reference creates a misleading impression of an independent field of law,
when, on the contrary, the necessity of consumption cannot be separated from the
issues of travelling. Travel Law is part of Consumer Law as Consumer Law
principles guide Travel Law. Therefore, ‘consumer traveller’ at first glance would
settle any misleading impression focusing on the legal person into both capacities:
consumption and travelling.
On the contrary, in Brazil, the legal concept of the traveller is still unknown.
Without a precise legal definition, it is intertwined with the concept of consumer,
which is wide enough to consider also legal entities (if vulnerable), bystanders and
all persons exposed to commercial practices, covering the subjective rights of the
6
4.3 Vulnerability 155
legal holders as a whole. The courts have named hypervulnerables, other legal
persons set up by special laws, as Elderly, Children and Disabled persons.
4.3 Vulnerability
Both Brazil and the EU have used the term vulnerability in different contexts. The
term has different meaning in those legal systems, and explanations vary according
to the approach in question.
In Brazil, all consumers are vulnerable under the principle of vulnerability set
forth by the CDC.7 Vulnerability is assessed in abstracto on all consumers or in
concreto on a group of consumers who are particularly vulnerable, like those
hypervulnerable persons,8 which have protection by special laws. Both consumers
and hypervunerable consumers are not in a position to have equal bargaining power
mainly on account of the difficulties in obtaining accurate information from the
supplier/retailer, but hypervulnerables are more vulnerable than others.
The sophistication of the concept of vulnerability goes beyond the essentials of
the principle set forth by the CDC. According to authors, it applies to everyone who
consumes: the rich, poor, educated, non-educated, credulous or wise.9 The Superior
Court of Justice identifies three types of consumer vulnerability as follows: technical
vulnerability (the lack of knowledge concerning the goods or services in the con-
sumer relationship), legal vulnerability (the lack of legal knowledge) and factual
vulnerability (circumstances in which there is a lack of consumer economic capacity,
such as physical or even psychological capacity of the consumer). More recently, the
court has included informational vulnerability (the lack of information or insufficient
information concerning the good or service that may influence consumer choice
processes).10
Conversely, in the EU, legislation takes as a benchmark the average consumer,
who is reasonably well informed and reasonably observant and circumspect, taking
into account social, cultural and linguistic factors.11 The concept of vulnerability in
the EU touches only those characteristics that make a person particularly vulnerable
to unfair commercial practices, such as age, physical or mental infirmity, or credu-
lity. These characteristics make those consumers particularly susceptible to a com-
mercial practice or an underlying product and economic behaviour. In the EU, only
such consumers are likely to be distorted by commercial practices in a way that the
trader can reasonably foresee.12
7
Act 8.078, 1990, Art 4 (I).
8
Elderly, children, disabled. The term hypervulnerable stems from the courts not from the law.
9
10
STJ REsp 1.195.642/RJ, j.2012, (4).
11
12
Directive 2005/29/EC, (19), Unfair business-to-consumer commercial practices.
Though different in emphasis, in essence these definitions rest on one of two main
aspects of vulnerability: weaker bargaining power and difficulties in obtaining
accurate information in the modern market.
The relevance of determining the particular legal status of a party is due to the
legal notion that a party is bound to perform his or her obligations. A party is bound
by the reasonable impression that he/she creates. According to traditional principles
of private law, a party who signs an instrument may not later complain about not
reading or not understanding it. However, important risk factors of consumer
vulnerability have emerged from the current socio-economic context as a result of
market dispute and economic, social and technological developments, which create
new sets of challenges. The risks are heightened by the fact that markets are
becoming increasingly complex and sophisticated, leaving it difficult for the con-
sumer to assess them reasonably.
Regarding the terms of the contract, the consumer is left without choice but to
agree to the terms drawn up in advance by the seller or supplier without being able to
influence the content of those terms. This is what is called unequal bargaining power.
Whereas unequal bargaining power goes beyond the scope of the traditional
freedom of contract, consumer protection laws interfere reasonably and necessarily
with the freedoms of both parties. This is why the current EU policy is firmly
grounded on the protection of individual rights,13 and the current Consumer Rights
Directive stresses that consumers should enjoy a high common level of protection
across the Union.14
By legal nature, any consumer policy or consumer protection or even consumer
protection policy has its grounds on the unequal relationship between two parties.
Such imbalance has basis on the principle of equality, meaning that no party has
precedence over another. The law shall address natural differences only in accor-
dance with the principle of equality. It is a legal fiction for establishing the criterion
of proper rules. That is why consumers are protected by law from unequal bargaining
power because often there is a lack of meaningful choice as in the case of a form
contract heavily weighted in favour of one party in terms of a ‘take it or leave it’
basis.
As herein mentioned, if a contract contains unfair standard contract terms
(EU terminology) or abusive clauses (Brazilian terminology) inserted by suppliers
into the text of the contract creating imbalances to the detriment of the consumer, the
consumer is not bound by them. Although the contract itself usually remains valid,
the abusive clauses are invalid. If there is doubt about the meaning of a term
13
INT/608-CESE 802/2012-2011/0340 (COD) Consumer agenda 2014–2020. The
EESC—European Economic and Social Committee is opposed to any steps, such as the optional
system, which would allow for review of the existing protection to safeguard consumers who are the
weaker parties to the contract and who do not always have the means for seeking help.
14
(or clause), the interpretation most favourable to the consumer shall prevail both in
Europe15 and in Brazil.16 The law does not prohibit standard term contract
(EU terminology) or contract of adhesion (Brazilian terminology) but regulates
such type of contract in view of the principle of equality.
This leads to a more elementary or more natural conclusion that the existence of
vulnerability in this context is intrinsically intertwined with the existence of an
unequal relationship between two parties where the consumer, in general, is always
in a weaker bargaining position than the supplier. It means that the weakness
comes not from an individual or personal characteristic but from the fluidity of
vulnerability in view of the present risk of the situation where the consumer is
involved.
It is impossible to put an end to vulnerability through specific measures to address
individual state and characteristics on the one hand and external factors on the other,
but it is possible to reduce the risk of the vulnerability by creating an assertive
public policy like consumer protection or a further consumer traveller protection.
Thus, for instance, it is false to believe that a crash during a flight is impossible.
The crash event is possible but most unlikely to happen if the air company carries out
the regular technical measures and sticks to maintenance schedules. A plane crash
that attracts media coverage will temporarily alter peoples’ feelings about the safety
of flying. However, the risk is not really changed, the risk is always there.
In this context, consumer vulnerability is always there in abstracto, in different
levels. But as the airline’s commitment to safety is beyond of the consumer’s
capacity to make certain the level of the risk, the law shall ensure that every air
company in a given country and a given market is subject to the safety standards. In
this regard and along with other rules, consumer law was introduced on a piecemeal
basis to deal with the particular imbalance of the relation where the consumer is
always vulnerable in view of, inter alia, the lack in private autonomy.
Studies on vulnerability from different countries have demonstrated that the
concept varies significantly depending on the approach in question. For example,
in the United Kingdom, it is consumers in vulnerable positions, not vulnerable
consumers. We can’t simply or easily divide society into ‘vulnerable groups’ and
‘the rest’. People’s circumstances change and anybody can become vulnerable at
any time for example through job loss or bereavement. The focus of action needs to
go beyond individuals and individual solutions.17
In Australia, consumer vulnerability is often described in terms of consumer
characteristics or demographics such as age, disability, gender, race/ethnicity, liter-
15
Directive 93/13/EEC: ‘Whereas contracts should be drafted in plain, intelligible language, the
consumer should actually be given an opportunity to examine all the terms and, if in doubt, the
interpretation most favourable to the consumer should prevail.’
16
Act 8.078, 1990, Art 47: ‘Contract clauses will be interpreted in such a way as it is most
favourable to the consumer.’
17
Stearn (2012).
acy and level of education. In general, these measures are useful indicators of
potential vulnerability, and most government departments, large institutions and
commercial businesses use this to operationalise their vulnerability and disability
programmes and policies. However, there is no empirical proof that biophysical
characteristics of individuals should be the sole basis on which to define consumer
vulnerability. An alternative approach might be to view vulnerability as a spectrum
that is neither enduring nor binary. Any individual might experience vulnerability at
a point in time.18
The EU also carried out a study in 2011 that pointed to a specific problem such as
the disadvantaged consumer. More recently, a different approach emerged, arguing
that considering consumers as disadvantaged persons simply because they belong to
a socio-economic group does not fit with actual behaviour, nor can it lead to
adequate recommendations on consumer empowerment. According to this
approach, research should focus on the concept of vulnerable consumers rather
than disadvantaged consumers.19
To the traveller, there is a range of external situations that imply external
vulnerability; some of these are different language, cultural differences and foreign
currency. So often, the traveller is also a victim of xenophobia, racism or other
biases. Even the most experienced traveller might always experience difficulties
abroad. Moreover, international consumer contracts might embed the vulnerability
of the traveller by legal vulnerability as further explained. In settling disputes that
arise from contracts, concurrent jurisdiction of courts is also a matter of vulnerability
between two legal systems of law. Therefore, it is also a lack of legal international
harmonisation of laws. It means that in such conditions, the traveller, which in
essence is a special consumer, is always in a vulnerable condition.
4.3.1 External Vulnerability
4.3.1.1 Language and Cultural Differences
Language, together with culture, is the main barrier for the consumer traveller. In an
alien environment, the linguistic conventions of a society and the use of logic as a
tool to understand natural languages can affect the reasoning of the consumer, which
goes beyond language. The traveller faces difficulties in accessing information,
finding appropriate goods and services or even understanding rules of the foreign
city. These certainly give rise to problems of vulnerability.
Two approaches of natural languages serve to illustrate this. The first approach
regards law, whilst the second concerns the meaning of the language and cultural
18
Harrison (2013).
19
TNS Opinion & Social, Special Eurobarometer n 342 (2011).
incompatibility between logical patterns and the natural language. Both approaches
are discussed below.
Taking up, inter alia, concerns on language related to contracts, both systems,
Brazil and the EU, require that the language of the contract be clear. In Brazil, the
written form of the contract of adhesion shall be prepared using clear language and
legible characters to ensure consumer comprehension.20 In addition, the offer of
goods and services shall ascertain their characteristics, quality, quantity, composi-
tion, price, warranty, period of validity and place of origin, amongst other pieces of
information. The information shall correctly, clearly, precisely and comprehensively
be given in Brazilian Portuguese language. The offer shall also inform of the
eventual risk that the good or service may pose to the health and safety of the
consumer.21
In Europe, where all or certain terms offered to the consumer are included in the
contracts, these terms must always be in plain, intelligible language.22 However, the
issue of language in Europe is more sensitive because of cultural diversity. As it
happens, the Directive on Consumer Rights sets forth that the Directive should not
harmonise language requirements applicable to consumer contracts. Member States
may maintain or introduce in their national law language requirements regarding
contractual information and contractual terms.23
In the case of timeshare contracts, as to pre-contractual information and contract
terms, consumers should have the right to choose the language that they are familiar
with.24 In regard to small claims procedure, a party can refuse to accept a document
because it is neither (a) in the official language of the MS nor (b) in a language that
the addressee understands.25
It is a misleading commercial practice to provide after-sales service to consumers
in a language that is not an official language of the Member State where the trader is
located and then make such service available only in that other language without
clearly disclosing this to the consumer before the consumer commits to the
transaction.26
Recognising that language is a vulnerability for the consumer, the Brazilian state
court located in Rio Grande do Sul cancelled a timeshare contract concluded in
another language because the consumer traveller was not aware of clauses regarding
the occupancy periods of the property. The court applied Article 49 of the CDC. It
clarified that the consumer had the right of withdrawal, and hence every amount paid
20
Act 8.078, 1990, Art 54, § 3.
21
Idem, Art 31.
22
Directive 93/13/EEC, Art 5.
23
Directive 2011/83/EU, Recital (15), Art 6 (7).
24
25
Regulation (EC) 861, 2007, Art 6 (3) (a) (b).
26
Directive 2005/29/EC, Annex I (8).
during the period of withdrawal shall be returned immediately to the consumer,

including any costs monetarily updated.27
In the EU, one of the top barriers to cross-border trade is language, along with
culture.28 The European Parliament in a 2011 Resolution29 has stated that there is
more need in terms of legal certainty, language barriers and transparency of pro-
ceedings. Language and cultural differences may exacerbate other barriers. In
addition, many problems arise because of miscommunication.30
Recently, the Court of Justice analysed substantial divergences between EU law
and the law of Spain concerning taxation on special scheme for travel agents. The
national law systematically uses the term traveller, whilst other language versions of
Directive 2006/112/EC use the terms ‘traveller’ and/or ‘customer’, sometimes
interchanging their use. The discrepancies between language versions in view of
the coexistence of the traveller-based approach and the customer-based approach
lead to double taxation and distortions of competition.31
Concerning the second approach, the most obvious difference between languages
is the different labels established to express concepts, and these labels are anything
other than cultural conventions. The majority of such labels are arbitrary,32 as for
instance consumer, Verbraucher, consumidor, consumatore, consommateur, 消费者
or traveller, traveler, Reisenden, viajante, viaggiatore, voyageur, 旅客, passenger,
business traveller, user. In the modern world, every country with a legal system has
its own set of artificial words. The labels have almost nothing of nature in them.
However, this is rather simplistic at first glance.
Whilst language can grant labels as particularly fancy, it cannot apply the same
fancifulness to the concepts and meanings behind the labels and hence to culture. In
practice, culture not only controls the labels but also interferes incessantly in the
borders of what ought to be the right of nature. Whilst by nature some concepts are
clearly delineated like ‘man’ and ‘bird’, cultural conventions do manage many other
concepts, in ways that sometimes disturb the common sense.33
Linguists have a view on ‘requesting’. Requests are an interesting pragmatic
feature to examine because there are identifiable ways in which requests are made in
different languages, as well as differences in how they are expressed across lan-
guages and cultures. Social linguistic interaction is not always simple. It may also
include elaboration, slower speech rate, gesture or the provision of additional
27
TJRS Ap.197267263/RGS, j.1998, another case was deemed one year before; TJRS
Ap.196182760/RGS, j.1997.
28
COM (2011) 635, (1).
29
Resolution 2011/2117 (INI) (25 October 2011).
30
IP/A/IMCO/ST/2010-08 (2011), p. 102.
31
ECJ 26.09.2013 C-189/11.
32
Ross (2003), p. 206.
33
Deutscher (2010), p. 14.
contextual cues. Some examples are comprehension checks, clarification requests,

and self-repetition or paraphrase.34
Taking into account the English words ‘law’ and ‘right’, the Brazilian Portuguese
uses only one label for both: ‘direito’. This uniqueness, in place of the two words
commonly found in other legal systems, requires further explanation. In German,
like in English, there are two labels: Gesetz (law) and Recht (right).
The single word ‘exit’ in English or ‘saída’ in Brazilian Portuguese covers a
single meaning independently of whether it is addressed for cars or for people. In
contrast, it is found in German with double labels—one set up for cars ‘Ausfahrt’,
another for people ‘Ausgang’—with two different meanings—one for the object (the
car), the other for the person. In Germany, the type of bread named Brötchen, which
is usually found in the east of Germany, has different labels such as Bemme
(Saxonia) or Schrippe (Berlin). It is a matter of social and cultural convention within
the same country.
Why do some other languages not bear gender distinctions, such as Finnish,
Vietnamese, Indonesian and Hungarian?35 According to experts, such languages are
grammatically and consistently simple because they have no grammatical gender at
all, whilst on the contrary, the great majority of languages have particular genders,
like French, Italian, Spanish, Portuguese, Romanian, German, Dutch, Swedish,
Norwegian, Danish, Russian, Polish, Czech and Greek.36
Many languages are morphologically much more complex than English. There
are languages in which each verb has many hundreds of distinct inflections. The
more frequent forms of high-frequency verbs may well be stored in the mind as
separate items. Nevertheless, many forms are infrequent and likely to be created on
the spur of the moment, using allomorph shapes and descriptions of word shapes.37
A recurrent problem found in many languages relates to logical principles. It is
the use of double negatives. The grammatical tradition of English, for instance, has
prohibited the use of double negatives for hundreds of years. Nevertheless, the
double negatives continue to thrive across the world. Thus, phrases such as ‘He
didn’t say nothing’ or ‘Are you going to spend your whole life not trusting nobody?’
are double negatives. In other languages like Portuguese, Spanish, Italian and
Ancient Greek, double negatives regularly perform a reinforcing, rather than a
cancelling, function.38 For example, in Portuguese, the phrase ‘Eu não vi nada’
(I did not see nothing) is commonly used to emphasise the context. Curiously, other
languages, like German, chose one negative to express the same meaning: ‘Ich habe
nichts gesehen’.
That is to say, the natural language is not to be appealed to in logical investiga-
tion, and the validity of logic has nothing to do with whether it turns out to be useful
34
Lightbown and Spada (2011), pp. 44,102.
35
Deutscher (2010), pp. 201–202.
36
Idem, p. 200.
37
McGregor (2009), p. 74.
38
Riemer (2014), p. 187.
as a representation of the meaning of natural language. The value of logic is precisely

that it takes us beyond the imperfections of natural language, allowing us to discern
logical structures, which the messiness of natural language obscures. Two different
conclusions may be drawn from this: one that logical investigation is in fact often
oriented away from natural language, embodying assumptions designed to put
mathematical notions on a sound footing,39 another that each language has a
structure that places logic in a particular way.
Actually, natural languages typically do not contain precise words whose mean-
ings correspond to those of the logical operators. For instance, the propositional
connectives ‘and’, ‘or’, ‘not’ and ‘if . . . then’ are the words in English for the logical
operators like &, V, Ø and Ͻ, which underlie the meanings of natural language at a
certain degree of abstraction. This does not mean that logical operators are not
representative of the meanings relevant to the analysis of natural language nor that
logic as a whole has nothing to do with the study of natural language. For linguists,
there is no clash between logic and linguistics because the two fields share a subject
matter called ‘meaning’. ‘Meaning’ is the core of language. Only when sequences of
sounds or letters have a meaning do they qualify as language.40 The branch of
linguistics that study the ‘meaning’ in language is the so-called semantic.
As a result, it is logically acceptable for the consumer traveller who speaks
Portuguese to say, ‘Eu não vi nada’ (I didn’t see nothing), but it is not logically
acceptable for the consumer traveller who speaks English to say, ‘I didn’t see
nothing’. Whilst one language accepts the double negative as a reconfirmation, the
other refuses it.
Therefore, it is not difficult to comprehend why misunderstandings are frequent
when the consumer traveller uses a second language. He may substitute similar
syntax from his first language by the words of the foreign language. Usually, they
use the logic of their native language to speak another language.
Over the years, linguists without deep empirical evidence spread the understand-
ing that all languages are equally complex. New studies are now coming out to show
that evidence suggests that the complexity of some areas of grammar reflects the
culture and society of the speakers and that the idiosyncrasies of the mother tongue
do, after all, affect the mind. Different languages lead their speakers to different
perceptions and therefore to different worldviews. Generally, the communication
between speakers and hearers corresponds well, that is to say, the meaning intended
by the speaker and the meaning inferred by the hearer in general works. But, of
course, mismatches do occur. A hearer may take offence when none was intended or
fail to take offence when it was intended. Nevertheless, things normally work
relatively smoothly.41
Overall, language is an active instrument of coercion through which culture
imposes its conventions into the mind. What the individual finds natural depends
39
Idem, pp. 188–189.
40
Idem, pp. 3, 188.
41
McGregor (2009), p.145.
largely on the conventions that have been set up. In other words, what common sense
finds natural is what it is familiar with.42
The language is not the manifestation of thought. Language is the thought itself.
Each language has its own structure at the repertory, rules of combination and use.
This means that each language organises reality differently from another. The
important thing is not that a language has more words to cut reality, but to know
that the existence of these words leads to the perception of reality differently.
4.3.1.2 Racism, Xenophobia and Ethnocentrism
This topic is partially related to the latter topic because racism and xenophobia are
transmitted, inter alia, by language through learning from generation to generation.
Some aspects of language and culture are impressed so deeply in the individual’s
mind as the individual does not recognise them as such.
Even where some legal systems explicitly specified racism and xenophobia along
with crimes and even when there is the interest of every state to suppress such
offences, which justifies their status as crimes, why are they still persistent or even
growing worldwide?
The combat of racism and xenophobia is an important pillar of the EU Treaty.43
The European Union rejects theories that attempt to determine the existence of
separate human races. In addition, the European Parliament has adopted a number
of resolutions on the fight against racism in Europe.44
However, the problem of racism and xenophobia persists. Racism may be odious,
but racist groups and political parties are organised around an opinion. Many liberal
thinkers defend their right to exist on the ground of protecting ‘freedom for the
thought that we hate’.45
In this regard, EU law has provided a minimal framework to mitigate the
incitement to hatred on grounds of race, sex, religion or nationality.46 The term
‘hate speech’ is to be understood as covering all forms of expression that spread,
incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of
hatred based on intolerance, including intolerance expressed by aggressive nation-
alism and ethnocentrism, discrimination and hostility against minorities, migrants
and people of immigrant origin.47
42
Deutscher (2010), pp. 19–21, 234.
43
TEU and TFEU (2010), Art 67 (3): ‘The Union shall endeavour to ensure a high level of security
through measures to prevent and combat crime, racism and xenophobia (..)’ Regulation (EC) 1035/
97, Regulation (EC) 1652/2003 and Regulation (EC) 168/2007, the later established a European
Union Agency for Fundamental Rights.
44
Directive 2000/43/EC, Recital (5) (6).
45
Oliver Wendell Holmes famous statement. Cited in Bleich and Lambert (2013), p. 123.
46
47
OPINION of Advocate General C-244/10 and 245/10 (2011).
Xenophobia is irrational. It is the feeling of dislike or fear of people from other

countries based on various aspects, carrying fear of losing identity, aggression,
targeting a foreigner who does not belong to the community. All of these things
taken together and accepted as true, or very likely true, make up the package of
background beliefs of the individual. Worryingly, it produces aggression and vio-
lence by thought, and it is extremely contagious and dangerous. The transmission
occurs from mind to mind.48
There are real differences between people, but such differences cannot be used as
the basis for discrimination and inequality because in this sense, they cannot be used
to justify unequal treatment, and in such a point, there are somehow several reasons
why it still happens.
Studies point to a distinction between political parties and private groups. When a
government dismantles a racist group, it limits important freedoms, but when it bans
a political party, it strikes at the foundations of democracy itself. Hence, since
political parties play a central role in democratic societies, they are more protected
from the interference of the state than are small private groups.49 This is why in the
EU, the Member States have a wide variety of opinions for limiting racist
associations.
In many cases, the word racism is not found in any legislation targeted to limit
racist organisations. In some Member States like Germany, the Constitution allows
for the dissolution of parties that ‘seek to undermine or abolish the free democratic
basic order or to endanger the existence of the Federal Republic of Germany’ or of
groups that ‘contravene the criminal laws, or that are directed against the constitu-
tional order or the concept of international understanding’. Though not explicitly
written into a country’s law, racism is often associated with fascism and anti-
democracy.50 Manifestations of racism could generate strong state repression. This
can be illustrated in the 1990s with the dissolution of the Free German Workers Party
(FAP), associated with racism and anti-Semitism. However, other political parties
remain, such as the NPD (with the similar connections and nature of FAP)51 or REP
(which exercises opposition to immigration).52
Likewise, in France was imposed precautionary bans on demonstrations in the
1990s. In 2005, the Interior Ministry ordered the national intelligence service to
conduct a survey of the racist and violent far-right groups, leading to the dissolution
of Elsass Korps.53 Nevertheless, political parties like Le Pen’s party, actual Front
National (FN), which criticises immigration, remains active.
According to Bobbio, an Italian philosopher, there is no need for a racist party
exists for racism to be born, but it is unavoidable that the formation of such a party
48
Chomsky (2011).
49
Bleich and Lambert (2013), p. 124.
50
Idem, p. 124.
51
Idem, 141.
52
Die Republikaner, cited by Bobbio (2000), p. 129.
53
Idem, p. 141.
reinforces racism. The racial conflict is inescapable whenever they come into contact
through mass immigration.54
In Brazil, the Federal Constitution sets forth the repudiation of terrorism and
racism as one of the main principles of the country.55 The practice of racism is a
non-bailable crime, with no limitation, subject to the penalty of confinement, under
the terms of the law.56 All persons are equal before the law, without any distinction
whatsoever. It is ensured to Brazilians and foreigners residing in the country the right
to life, to liberty, to equality, to security and to have a property.57
In contrast to the EU, in Brazil, there are no explicit racist political parties, but
private informal groups exist, such as the Skinheads. The group strives to spread that
not all skinheads are racist; however, the main motivation of the Brazilian Skin is
hatred toward Northeasterners (Nordestinos). They are against those from northeast-
ern states who migrated to the large cities searching for a better life. In 2005, the
name of the group was involved in a harmful incident in Sao Paulo, resulting in
the death of two homosexuals. Often the group appears in criminal court decisions of
the TJSP. The report states that the group is a threat against social minorities, trying
to eliminate black people, Jews, homosexuals and Northeasterners.58 Another deci-
sion repeated these statements, concluding to condemn those who participated in the
violent activities of the group.59
In this context, both ‘freedom of association’ and ‘freedom of speech’ are
fundamental principles of the Brazilian Federal Constitution. However, the rights
of association and expression are not absolute, being subjected to appropriate
limitations. Those principles meet the same concerns to protect the foundations of
democracy. Thus, an association of individuals whose purpose is to commit crimes
or to threaten the moral or public order is forbidden. As the Federal Constitution sets
forth racism as a crime, being the ‘freedom of association’ and the ‘freedom of
speech’ not absolute principles, any political party with such slogan would be
unlawful.
According to authors, regionalism and colonialism might be the starting point that
keep xenophobia and racism alive. In Western Europe, there is an increase in
regionalism. As the European Union slowly consolidates towards executive
power, reflecting big economic concentration, people are trying to find other ways
to preserve their identity. That leads to a lot of regionalism, with both positive and
negative aspects. Colonialism is tied with the idea of racism. It is very striking to see
nations justifying the conquest of other nations with oppression, dictating others’
lives and oppressing them.60
54
Bobbio (2000), p. 129.
55
CF (1988), Art 4.
56
Idem, Art 5 (XLII).
57
Idem, Art 5.
58
TJSP RSe 332.853-3/0-00/SP, j.2005.
59
TJSP RSe 408.209-3/0-00/SP, j.2005.
60
Chomsky (2011), p. 117.
It is the same in the broader social environment, where there are institutions
functioning as systems of oppression and domination. The people who are in control,
who are harming others, will create justifications for themselves. They may do it in
sophisticated or non-sophisticated ways, but they are going to do it, and that is part of
human nature. One of the consequences of that can turn into racism.61
By contrasting the principles of the TFEU with the principles of the Brazilian
Federal Constitution, it is noteworthy that whilst TFEU carved to prevent and
combat crime, racism and xenophobia, the Brazilian Federal Constitution treats the
repudiation of racism as an immediate need. In contrast to the TFEU, the Brazilian
Constitution defined racism as a crime,62 but it does not mention xenophobia. This
can be explained in terms of concepts. Although xenophobia and racism have
different concepts, they have an identical target, that is, discriminating someone.
There are different measures and different ways of treatment in each legal system.
The Racial Equality Directive63 does not use the word ‘crime’ on racism or xeno-
phobia, but the EU Commission provides financial support to fight against racism,
xenophobia and anti-Semitism. There is also financial support to activities targeted
to facilitate the integration of third-country nationals.64
Even so, wrong discrimination occasionally appears in the law. In the EU, Article
20 of the Services Directive permits unequal treatment to be based on the nationality
or place of residence of the recipient of the service where such treatment is objec-
tively justified, which is to be ascertained in each individual case.65 It is an exception
as well pointed out by the ECJ, but the law permits it. The main provision, however,
emphasises non-discrimination. Article 20 (1) sets forth that ‘Member States shall
ensure that the recipient is not made subject to discriminatory requirements based on
his nationality or place of residence’. Pragmatically in time of peace, the criteria
‘nationality’ and/or ‘place of residence’, even if subjected to objective components,
are mistaken and reveal one kind of vulnerability created by law affecting the
recipient of the services: the traveller.
It is to be noted that discrimination is not always pervasive. Sometimes the
discrimen is needed to justify different conditions. For instance, physical power
between women and men is obviously different on account of nature. Thus, women
cannot be submitted to certain jobs, which only men are able to do. In this regard, the
employer in Brazil cannot offer a job that demands physical power exceeding 20 kg
continuously or 25 kg occasionally to women.66 By nature, the discrimen is readily
61
Chomsky (2011), p. 124. Note: As e.g. the British conquest of Ireland, the earliest of the Western
colonial conquests.
62
CF (1988), Art. 5 (XLII) ‘The practice of racism is a non-bailable crime, with no limitation,
subject to the penalty of confinement, under the terms of the law.’
63
64
http://ec.europa.eu/justice/fundamental-rights/racism-xenophobia/index_en.htm, webpage vis-
ited on 15.04.2015.
65
ECJ 07.12.2010 C-585/08 and C-144/09.
66
Brazilian Labour Law, CLT—Consolidação das Leis do Trabalho, Art 390.
understandable. Conversely, discrimen regarding ‘nationality’ or ‘place of resi-

dence’ is not readily understandable because it is fictitious rather than natural. A
major argument would be needed to explain that such fictitious discrimination fits in
the context, as in an extreme situation, e.g. in case of war. Otherwise, nowadays it is
unacceptable.
Sometimes, to justify the discrimination, the law uses the argument of ‘public
interest’. It is correct when the criteria to establish a discrimen fit well. For instance,
consumer protection is tied with the concept of ‘overriding reasons relating to the
public interest’. The Directive on Services sets forth that the concept has been
developed by the ECJ and may continue to evolve.67 One of the possible explana-
tions for that is that the balance between suppliers and consumers is only feasible
through measures that protect consumers. The consumers ought to be protected
because of the several risks they are exposed to in the actual market, mainly abroad.
Amongst the many kinds of bias touching the traveller, the last focus of this
chapter is ethnocentrism. It is not a crime as a category of bias, except when it turns
into a pervasive consequence. It affects the traveller’s experience in an invisible way.
It means broadly judging another culture by the standards of one’s own culture. It
may also involve prejudicial attitudes towards outsiders, stereotypical thinking and
in-group bias. Often only people who are perceived as being similar to oneself
receives more favourable attitudes.68
Experts in intercultural cognition have drawn attention that ethnocentrism comes
naturally to us because our cultural background provides us with a set of habitual
ways of construing events, something referred to as framing.69 Therefore, stereo-
types about faraway people and places are unavoidable. The danger is that negative
stereotypes can hijack the interpretations of the person’s experiences.70 Whilst some
stereotypes are neutral, as how to represent categories or groups to scientific
purposes, others are perniciously wrong, as how to separate races.
It is hard to overcome fully ethnocentrism because it is deeply founded into our
perceptual process. Stereotypical thinking and cognitive bias easily influence it. As a
result, intercultural sensitivity needs to be worked out. Many experts see ethnocen-
trism in terms of shared patterns of interpretation. It reflects the natural tendency to
frame things using the patterns the individual is familiar with. Simply travelling to a
foreign country does not automatically provide the access to the shared worldview
there, nor does it automatically take the traveller beyond ethnocentrism.71
Thus, there are two perspectives to be noted in respect of ethnocentrism: the
traveller’s perspective when visiting a foreign country and the resident’s perspective
when interacting with the traveller. Both may behave ethnocentrically before each
other.
67
68
Shaules (2015), pp. 125, 126.
69
Idem, p. 127.
70
Idem, p. 124.
71
Idem, pp. 129, 130.
As intercultural sensitivity needs to be worked out, both travellers and residents

are exposed to several levels of vulnerability in the context of racism, xenophobia
and ethnocentrism. Although racism and xenophobia are more pervasive, so much
that there are legal systems that already set forth these as crimes, there are many
‘unknowns’ in the magnitude and cultural patterns of ethnocentrism because of the
complexity of the subject and the need for further research.
4.3.1.3 Foreign Currency
Dealing with different currencies from different systems must result in vulnerability
too. There are two perceptions on this issue: (1) the internal market perception,
which relates to contracts offered in the consumer’s domicile in foreign currency,
and (2) external perception, related to dealing with foreign currency outside of the
consumer’s domicile (for instance, on travelling).
With regard to the first perception, there are legal tools developed by different
legal systems that prevent abuses of businesses when the offer to sell package travel
is shaped in foreign currency in the internal market. In promoting their goods and
services, many firms have had few qualms about providing distorted information.
In Brazil, the contract must comprise a set of standardised principles, which are
considered as general clauses. For example, with few exceptions, a clause that set out
payment in foreign currency is invalid.72 The court of Sao Paulo has repealed
lawsuits involving foreign currency. One of the cases was about a travel agency
that claimed that the advertisement of a package travel in US dollars did not offend
legislation. The travel agency was punished by PROCON, which controls mislead-
ing advertisements relating to this issue. After being penalised for doing so, the
travel agency filed a claim against PROCON without success.73
In the EU, neither the Directive on unfair terms nor the Directive on business-to-
consumer commercial practices addresses the issue of foreign currency in advertise-
ments in the internal market. The exception is Directive 2007/64/EC on payment
services in the internal market, but with a different scope. The Directive regulates
currency exchange and other financial issues rather than consumer-related contrac-
tual obligations.
72
Decree 857 (1969), and Act 8.078, 1990, Art 53 § 3.
73
TJSP Ap.0009326-39.2011.8.26.0053/SP, j.2013. The travel agency announced the package
travel in Sao Paulo’s newspaper with general circulation advertising on it in US dollar. The offer
announced the payment in instalments without interest, but the sum of the instalments was different
to the payment in cash. The price published in dollars lacks any consumer’s immediate under-
standing of the currency. The consumer needs to figure out the current rate used by the company and
seeks the rate of the day to know the real price of the offer. Therefore, the offer lacked accurate
information required by the consumer legislation, particularly Art 31 and 37 § 1, of the CDC.
It is noteworthy that EU cannot change drastically from one day to another the
languages spoken in the Member States. However, with few exceptions,74 seeking to
achieve the strengthening and the convergence of Member States’ economies and to
establish an economic and monetary union, EU decided to shift from many different
currencies to a single and stable one, the euro. Thus, Member States shall coordinate
their economic policies within the Union.75
From the perspective of the EU single market, including the consumer traveller
perspective, such step represents an achievement because in the internal market, a
single currency indeed decreases part of the level of vulnerability, but it has minor
impact on external markets.
Remarkably, the main problem with currency arises because of social interactions
in a foreign country regarding the different currency. This is the point of the second
perception,76 as mentioned before. For instance, having to convert a figure expressed
in the currency of the consumer’s domicile into another country’s currency is always
a factor of uncertainty and loss in view of the volatile exchange rates and
applied fees.
One striking aspect of foreign currency is the fluctuation between the value of
local currency and the value of the currency of the country of destination. Such
fluctuation affects the ‘purchasing power of currency (PPC)’. It makes difficult for
the traveller to realise the quantity of goods or services that a monetary unit of
currency can acquire in a foreign country.
The so-called purchasing power of currency means the relative values of different
currencies. It is measured in the amount of goods or services that one unit of money
can purchase. For example, a traveller resident in Brazil planning a trip to China
would like to figure out in advance how much currency he or she would need during
his/her visit. He/she would need to know how much in Brazilian reais it would cost
for accommodation, coffee, meals and sightseeing. For the estimation, he/she may
think, mistakenly, to check the price in his/her city and convert it to yens using the
exchange rate. However, as exchange rate movements tend to be more volatile than
changes in national price levels, a better estimate would be based on the price of
coffee or meals in China, not in Brazil.
In the last two decades, governments and supranational entities have undertaken
efforts to compare currencies of different countries to determine whether the money
of a certain country is overvalued or undervalued. Essentially, it involves choosing a
subset of countries to price a common product list in addition to their regional lists. It
requires the preparation of a global list of products that will maximise an overlap in
products for a maximum number of countries, thereby creating links for
comparison.77
74
Denmark, Sweden and UK did not adopt the EU single currency. So far, Croatia as a new Member
State still uses its own currency the ‘kuna.’
75
TEU and TFEU (2010), Preamble and Art 5 (1).
76
The external perception of dealing with foreign currency outside of the consumer’s domicile.
77
Eurostat, The Eurostat-OECD PPP Programme and the ICP – a shared commitment (2005), p. 3.
To do so, they use indicators of price level differences across countries, the
so-called purchasing power parities (PPPs). PPPs are currency conversion rates
that convert economic indicators, expressed in nominal national currencies, to a
common artificial currency called purchasing power standard (PPS), which equalises
the purchasing power of different national currencies and thus allows meaningful
pure volume comparison of GDP and its aggregates between countries. In other
words, PPPs are both price deflators and currency converters; they remove the
differences in price levels between countries in the process of conversion.78
However, PPPs intend to remove the differences between economies rather than
literally remove them. It works as estimation to approximate economies. Studies
have pointed out that even between economies as similar as that of the United States
and Canada, there remain important differences in expenditure patterns because of
the differences in climate, tastes, packaging, regulations and the like. Therefore,
PPPs are estimates derived from the relative price levels reflecting the rate of each
currency to purchase equivalent goods and services.79
The Eurostat and OECD share a common programme to contribute with the
International Comparison Programme (ICP) of the World Bank. Although the
programme is shared, it operates with different approaches. Whilst Eurostat com-
parisons are made annually, the OECD makes comparisons every three years. The
shared programme Eurostat-OECD comparisons have been three yearly—1993,
1996, 1999, 2002 and 2005.80
The major users of PPPs have traditionally been international organisations such
as Eurostat, the International Monetary Fund, the OECD, the United Nations and the
World Bank, which have used the data for international comparisons of global
income. Individuals often refer to PPPs when moving from one country to another.81
In practical terms, the PPPs are to determine comparative price levels, or in
ordinary language where it is most (or least) expensive to live.82 The same applies
for travel and tourism as the consumer traveller is interested to know in advance
whether the country of destination is expensive or not for travelling. For example, in
South America in 2005, the most expensive countries to live in were Chile, Brazil
and Uruguay. Paraguay and Bolivia were the cheapest. However, whilst estimates of
per capita expending on specific products are not very reliable, the PPPs for some
specific products are more trustworthy. Dining out is cheap in Brazil, Bolivia,
Paraguay and Colombia but expensive in the top three per capita countries (Argen-
tina, Chile and Uruguay).83
There is no doubt that the consumer traveller, as a natural person, has the ability
of human learners to acquire the perception of different currency within a variety of
78
COM (2006) 135 final, p. 3.
79
Vachris and Thomas (1999), p. 4.
80
Eurostat, The Eurostat-OECD PPP Programme and the ICP – a shared commitment (2005), p. 2.
81
Idem, p. 2.
82
IBGE International Comparison Program (2006), p. 8.
83
Idem, p. 10.
social and cultural environments. The consumer traveller, who is cognitively mature,
is able to engage in problem solving, deduction and complex memory tasks. But he
or she has not the benefit of enough time to be familiar with the cultural and financial
environment of the foreign country.
This view refers to the idea that the traveller has a critical period for environment
acquisition. In addition to possible cognitive differences, there are also attitudinal
and cultural differences between residents and travellers. Whilst residents are able to
recognise automatically a penny, a coin or any other kind of currency in any form of
national money, the traveller has to think about that because the cognitive process to
differentiate the purchasing power of 10, 100 or 1000 is not automatically processed
by the brain in the first contact with the foreign money. There is a cognitive gap,
which exposes travellers to detriment, increasing vulnerability.
A simple and practical example to draw an idea about PPC refers to figures. There
are countries where a bar of chocolate costs an amount of 1000, whilst in other
countries the same bar may cost 10 or even 1. Intuitively, one may realise that the
figures are detached from the real value of the money, the ‘purchasing power of
currency’. Therefore, the traveller may pay the price of 10,000 dinars for a bar of
chocolate in Iraq, whilst in Brazil the same bar costs R$5.00 reais.
Even though the world economy is very complex, with extreme differences in the
overall size of economies,84 the traveller will never be sure whether the estimation
process is overestimated or underestimated.
In sum, whilst purchase power currency (PPC) refers to the power of the currency
in a regional market, purchase power parities (PPPs) refer to estimation to approx-
imate economies. The latter provide an orientation of the price of goods and services
between different markets. Nevertheless, through the consumer’s first contact with
the foreign money, in a broad sense PPPs impact vulnerability to the consumer
traveller.
4.3.2 Legal Vulnerability
In both locations, Brazil and Europe, the normative influence on the contract when a
dispute arises is translated into legal vulnerability mainly because of jurisdictional
issues. For instance, international consumer contracts usually fall within the exclu-
sive or concurrent jurisdiction of two legal systems of law. However, though there is
access to court, there is a lack of a concrete solution.
In Brazil, the cornerstone for jurisdiction is LICC/42, which prescribes in Article
12 that ‘the Brazilian authority is competent if the defendant is domiciled in Brazil or
if the obligation shall be performed in Brazil’. Such a provision, combined with CPC
Article 88, sets forth: ‘It is competent of the Brazilian authority if I. the defendant,
whatever his citizenship, is domiciled in Brazil, II. the obligation shall be performed
84
World Bank (2015), p. 163.
in Brazil, and III. The action has its grounds on facts occurred or committed in
Brazil.’
Although these provisions are the pillars of jurisdiction issues, they are detrimen-
tal to the consumer if he/she brings an action to court. This is mainly because in the
international consumer contract where the supplier (defendant) is situated in another
country, the consumer would not have access to court based on the legal framework
above described. However, Article 101 (I) of the CDC states that in matters relating
to the supplier’s civil liability, a lawsuit shall be brought in the court of the
consumer’s domicile. This rule implicitly shows that the consumer is the only one
interested in claims against supplier’s civil liability, and therefore the consumer’s
domicile is presumed. Experts and the courts without criticism recognise the pre-
sumption of the supremacy of the rule on ‘consumer’s domicile’. The supremacy of
the consumer’s domicile is absolute and leads court judgments.
Notwithstanding the remedy of the CDC on issues on where to file a claim, there
is not a legal certainty on the enforcement of a judgment provided to the consumer
domiciled in Brazil who files a claim against a supplier located in another country. A
Brazilian judgment authorising enforcement of a consumer award is not enforceable
under a foreign jurisdiction. If the supplier does not have a branch or office
established in Brazil, a legal decision in favour of the consumer under Brazilian
jurisdiction is a mere recognition of the consumer’s right, without enforcement.
The same is true for Europe regarding non-Member States. Nevertheless, if the
focus is on the Member States, the structure of jurisdiction on consumer contracts is
Regulation 593/2008, the so-called Rome I Regulation; Regulation 864/2007 (Rome
II); and Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforce-
ment of judgments in civil and commercial matters, which repealed Brussels I
Regulation (EC) 44/2001.
It is particularly noteworthy that although the EU relies also on the rule on
consumer’s domicile when the issue is jurisdiction, the concept of ‘directed activity’
(Article 6 (1) (a)) introduced by Rome I Regulation has brought ambiguity to the
issue. Hence, authors have argued that it sounds deliberately vague, so much so as to
raise doubts about its meaning just in the realm of e-commerce. The vagueness of the
concept of ‘directed activity’ not only causes interpretative problems regarding
e-commerce but may also do so for traditional consumer contracts.85
In theory, the general rules regarding preference for defendants over plaintiffs in
matters of jurisdiction has deep historical roots and encounters coherence with a
qualitative relationship in contractual terms, whereas the consumer is always in a
weaker bargaining position than the supplier. However, if a dispute has to be
resolved on the basis of general connecting factors, such as those prescribed in
85
Ragno (2009), pp. 147, 149.
Article 6 (3) Rome I Regulation,86 the consumer, as a consequence, could easily be

penalised,87 which may imply consumer vulnerability in a plain and strict sense.
Inevitably in a modern high-technology society where the consumer traveller is
located in a country and has the means to contact directly the hotel, the car rental, the
restaurant or the travel agency established in another country, that is, through the
Internet, concluding a contract through electronic means, the legal doubt concerning
‘how to enforce a foreign judgment’ is a prominent, challenging and worldwide
issue.
Obviously, such cross-border consumer relationship is not compatible with the
national consumer protection framework because of the problem of jurisdiction.
That is to say, it depends on international agreements amongst countries to protect
consumer travellers. This point is particularly significant in the context of encour-
aging consumers to travel and shop cross-border.
4.4 Travel and Tourism Contracts and Other Service

Contracts
There is no global consensus for a correct terminology in the sector, such as whether
the contract should be called travel contract, contract of tourism, contract of tourist
services and the like. Different legal systems and even different laws show different
wording or, rather, no particular wording at all, only service contract. The laws in
Brazil and in the EU have a common core: consumer law is the field of law that
regulates travel and tourism contracts, meaning that consumer rules are the grounds
for those contracts. However, they differ in the classification of contracts—the
grammar of law.
Whilst the EU decided to spread the consumer rules in many pieces of legisla-
tion,88 Brazil opted for a codification of consumer rules, the so-called Consumer
Defence Code—(CDC). It applies to all consumer relationships along with other
statutes, treaties and infra-rules (decrees or administrative rules), whereas the
86
Regulation (EC) 593 (2008), Art 6 (3): If the requirements in points (a) or (b) of paragraph 1 are
not fulfilled, the law applicable to a contract between a consumer and a professional shall be
determined pursuant to Articles 3 and 4. Art 3 sets forth: ‘Freedom of choice’ and Art 4 ‘Applicable
law in the absence of choice’.
87
Ragno (2009), p. 164.
88
For example, to name the important ones for travel and tourism law: Directive 93/13/EEC, on
unfair terms in consumer contracts; Directive 2005/29/EC, on unfair business-to-consumer com-
mercial practices; Directive 2011/83/EU, on consumer rights; Directive 2006/123/EC, on services
in the internal market; Directive 2008/122/EC, on timeshare contracts, and Directive 90/314/EEC,
on package travel contracts and linked travel arrangements. Moreover, there are also ‘Regulations’
directly applicable in all Member States on transport sector (Air, Rail, Bus/coaches, and Water-
borne), as well as some particular regulation such as the Regulation (EC) 593, 2008 on the law
applicable to contractual obligations (Rome I), Regulation (EC) 864, 2007 on the law applicable to
non-contractual obligations (Rome II), Regulation (EC) 44, 2001 on jurisdiction (Brussels I).
legislation89 works only in subsidiary functions if needed and appropriated in a

specific case.
Under Brazilian law, the Civil Code did not nominate travel contract (also known
as contract of tourist services or contract of tourism). There is no piece of legislation
that regulates solely travel contracts. Nevertheless, ‘travel and tourism’ comprises an
economic activity of particular importance in view of the amount of money involved
in the sector, as well as the multiple legal relationships that imply various services, as
for example transportation, accommodation, catering and leisure services such as
tours and/or events. Although these services are the core of the economic activity of
travel and tourism, they may also include other services such as insurance, travel
cards, loans for travels, fairs, exhibitions and so on.
In Brazil and in the EU, travel contract (contract of tourist services or contract of
tourism) is perfected basically in two ways: first by the traveller, who personally or
through a representative concludes the contract, which includes every service needed
to fulfil his/her expectations, either for leisure or business travel, and, second,
through an intermediary, who might be a tourist agency or a tour operator contacted
by the traveller.
According to Brazilian authors, travel contract is an intermediary agreement in
which the tourist agency undertakes the duty to seek, on behalf of the traveller, for
another contract that comprises either the travel package or separated components of
the package allowing the traveller to achieve the travel. The contract has a broad
performance comprising both the intermediation on bookings to provision of ser-
vices by any mode of transport, into the country or abroad, and the intermediation to
contract hotel services, travel arrangements to individuals or groups, excursions,
cruises and to assist travellers during their travels.90
However, the concept of the ‘travel contract’ is not fully harmonised in Brazil.
There are other approaches. For instance, it is not included in the concept of contract
of tourism or travel contract the individual components purchased by the traveller
through the travel and tourism agency such as air, rail and road tickets, hotel
booking, ticket to tourist destinations, services such as assistance to obtain a visa
or any other documents and so on. In this case, there is the carriage contract, the
accommodation contract or any other service contract rather than a ‘contract of
tourism’.91
In Brazil, neither travel contract nor consumer contract has been explicitly
defined by a piece of legislation. Rather, the Consumer Defence Code (CDC) sets
forth the legal definition exclusively for ‘service’.92 This is because the core of the
consumer law concerns the protection of the consumer relationship. Provisions
89
For example: the Civil Code, Commercial Code, statute of elderly, statute of disabled person, or
even international treaties, like Montreal Convention.
90
Lorenzetti (1999), pp. 215, 216.
91
92
Act 8.078/90, Art 3 §2: ‘Service is any activity available in the consumer market, for it there is
financial compensation, including those derived from bank activities, with a financial, credit, or
insurance nature, excluding those resulting from labour relations.’
regarding contracts (in general) are found in the Civil Code (CC), which covers
certain types of contracts such as purchase and sale, donation, rental, loan, deposit,
amongst other types of agreements.93 These are called typical or nominated contracts
because the law regulates them. But a vast majority of contracts are not nominated by
law. They are the so-called atypical or innominate contracts and are allowed to be
made according to Article 425 of the Civil Code. The tourism contract is an atypical
contract.
Although the tourist services offered by tourist agencies or tour operators are not
literally included in the CDC, they are widely covered by its provisions being a
matter of consumer relationship between the ‘consumer traveller’ and the provider.
Under the European law, there are differences between consumer contracts and
travel contracts. Although both contracts belong to the consumer law rules, in a strict
view, travel contracts concerns combined services rather than single services.
Thus, for instance, accommodation or car rental94 are services belonging to the
coverage of general EU consumer law95; on the other hand, transport96 and ‘package
travel and linked travel arrangements’97 are services covered by special laws. Special
laws are those that establish preferential treatment for certain legal persons. They
may enlarge or restrict, the rights of those for whom it is established. Regarding
transport, regulations refer to passengers; regarding ‘package travel and linked travel
arrangements’, the Directive refers to traveller.
In spite of the different framework in a broad sense, there are similarities in a strict
sense. Nevertheless, some small differences are also found in a strict sense in both
systems.
The advantages and disadvantages of such different legal frameworks will be
further examined.
4.4.1 Combined Service Contracts and Single Service

Contracts
In Europe, studies have used a precise terminology. The distinction between com-
bined service contracts (packages) and single service contracts (accommodation, car
rental, transport, other tourist services such as excursions, tours, events) is crucial to
93
Act 10.406/02, Arts 481 (purchase and sale), 538 (donation), 565 (rental), 579 (loan/lease),
586 (loan/credit agreement).
94
COM (2013b) 513, p. 3.
95
To name the important ones for travel and tourism: Directive, 93/13/EEC on unfair terms in
consumer contracts; Directive, 2005/29/EC on unfair business-to-consumer commercial practices;
Directive, 2011/83/EU on consumer rights; Directive, 2006/123/EC on services in the internal
market.
96
Air-Regulation 261/2004, Rail-Regulation 1371/2007, Bus and coaches-Regulation 181/2011,
Waterborne transport-Regulation 1177/2010.
97
determining the rights of the parties in view of the different pieces of legislation in
consumer and contract laws.98
The concept of ‘combined services’ stems from the definition of ‘package’ in the
former PTD, that is, a pre-arranged combination of not fewer than two of the
following: (a) transport, (b) accommodation, (c) other tourist services not ancillary
to transport or accommodation. Discussions on the definition of ‘package’ have
arisen over the years, and the CJEU clarified that travel services combined together
into a package upon the request of the consumer and not strictly prearranged are also
considered a package, and hence the PTD applies.99
The current Directive 2015/2302/EU drastically changed the focus on ‘package’,
highlighting the ‘travel service’. In Article 3, (1) it provides a definition for travel
services as including (a) carriage of passengers, (b) accommodation that is not
intrinsically part of the carriage of passengers and is not for residential purposes,
(c) car rental or other motor vehicles (. . .) or (d) any other tourist service not
intrinsically part of a travel service within the meaning of (a), (b) or (c).
In a row, it states in Article 3 (2) that ‘package’ means a combination of at least
two different types of travel services for the purpose of the same trip or holiday (. . .).
Whilst there are services that are within the scope of general EU consumer law, like
accommodation and car rental,100 other services are within the scope of special law,
like transport101 and package travel and linked travel arrangements.102 The impor-
tance of determining whether the service is combined or single is not in what they
say about the particular format itself (e.g., hotel booking service) but in what they
reveal about how to identify the law applicable to the contract.
In the wording of the Directive, both ‘package’ and LTA combine travel
services.103
In Brazil, although few authors make the same distinction on combined and
single services104 the approach is different because the CDC concentrates the rules
on consumer relationships, covering everything in the field. It is irrelevant whether
the service is combined or single because the rules protecting the consumer as a legal
person (natural person or legal entity) are found primarily in the CDC in a standard
frame, and only if appropriate will other general laws (the Civil Code) or special
laws (like the Statute of disabled person) apply.
The terms ‘combined services’ (serviços combinados) and ‘single services’
(serviços singulares) are neither in the statutes nor in the regulations. Brazilian
law did not consider ‘package’ as a main subject of law, like the EU did with the
98
SWD (2013) 263 final.
99
ECJ 30.04.2002 C-400/00 Club Tour.
100
COM (2013b) 513, p. 3.
101
Air- Regulation 261/2004, Rail—Regulation 1371/2007, Bus and coaches—Regulation
181/2011, Waterborne transport—Regulation 1177/2010.
102
103
Idem, Recital (17).
104
former PTD and the current Directive 2015/2302/EU; it makes brief reference to
‘package travel’ in Tourism Act 11.771/08 and its regulation, Decree 7.381/10, but
with a different scope.
Although ‘package travel’ is mentioned in Article 28, Item I, of the Tourism
Statute, it did not relate exclusively to its general meaning or legal concept. On the
contrary, the article makes the following classification under the chapter ‘Tourist
Carriers’: (I) package travel (. . .), (II) local tour (. . .), (III) transfer (. . .), (IV) special
(...), placing package travel in a role less prominent.
In addition, the term ‘package travel’ is also used three times in the regulation of
the Tourism Statute, Decree 7.381/10, but lacks any discernible concept as to its
meaning. The first reference in Article 32 states that the contracts relating to tourist
services offered by a travel agency shall inform (. . .) (II) the companies and ventures
included in the ‘package travel’. The second is found in Article 33, which specifies
that services of ‘package travel’ offered by travel agencies shall include the name,
address and tax number of the suppliers. Finally, Article 41 adds that cruise or river
roadmaps, rail and road, as well as their variations made by suppliers that sell
‘package travel’ must be reported to the Ministry of Tourism, respecting the com-
petencies of public agencies and other federal public administration bodies.
Thus, in the framing of the concept of ‘package travel’, neither the Regulation nor
the Tourism Statute has developed a clear legal definition. Nonetheless, the courts
consider ‘package travel’ as a service offered to consumers in a commercial practice
rather than as a product.105 However, whether package travel is a service or a product
is irrelevant in ascertaining a remedy against consumer right violations.
A legal definition of ‘package travel’ is significant only concerning to grasp a
concept precisely. The definition should provide tools for legal analysis rather than
affect consumers’ rights. That is to say, in Brazil, the CDC grants consumers’ rights
in milestones, and special laws will be welcome only to embrace those rights in
harmony with the CDC, never to weaken rights or eliminate them.
On the other hand, in the EU, consumers’ rights are found in different pieces of
legislation, which shall be applied according to the scope of the contract, whether it
covers combined or single services.
4.4.2 Liability
Liability is one of the striking points between Brazil and the EU. In Brazil, suppliers
are liable according to the principle of solidarity.106 It is a variation of American and
British terminology called ‘vicarious liability’ or ‘vicarious responsibility’.
105
STJ, AgRg no RE 850.768/SC, j.2009.
106
Act 8.078, 1990 Art 7, Sole paragraph: lf the offense was carried out by more than one author
everyone will be jointly liable for the compensation of damages according to the norms of
consumption. Note: This means that according to the CDC the different roles of the suppliers in
Whilst the CDC carries the main principle of no-fault strict liability (tort law)107
applicable to everyone in the chain of suppliers (providers), in Europe, according to
the law applicable to the contract, the suppliers’ liability shall be divided or
shared.108
In matters of package travel, for example, the European law relies on Directive
2015/2302/EU, which places the liability for the proper performance of the obliga-
tions arising from the contract exclusively on the organizer and/or retailer. The
liability remains on fault with the reversal of the burden of proof, which shift the
risk of providing evidence such as negligence to the other party to the contract. The
EU limits the liability of the organizer and/or retailer with respect to damages by
virtue of the provisions of the Directive.109
However, there is the right of redress too. For instance, for a single service
contract of carriage of passenger by air, if the air carrier pays compensation or
meets other obligations, there are no restrictions to seek compensation from any
person, including third parties. In addition, the air carrier may seek reimbursement
from a tour operator or another person with whom the air carrier has a contract.
Similarly, the tour operator or a third party, other than a passenger, can seek
reimbursement or compensation from the air carrier.110
The Brazilian Consumer Defence Code and the Civil Code do not impose any
limitation of liability at all, allowing judges to decide on the amount requested by the
parties as compensation for damages, without restrictions, but always on reasonable
grounds.
Although the juxtaposition of national and international laws is observed, if a
treaty restricts consumer rights granted by the CDC, there is the need to enforce the
supremacy of the Consumer Defence Code over that treaty. Actually, the CDC does
not exclude any other rights that may come subsequently as a result of international
travel and tourism services are not relevant because they are jointly liable. The consumer may sue
anyone in the chain of providers and in the event that the provider fails in the lawsuit, he may have
the third-party claim against the supplier who first contracted with the consumer.
107
Act 8.078, 1990 Art 14: The supplier of services is liable regardless of guilt, for damages caused
to consumers due to defects relating to the provisions of services, as well as insufficient or
inadequate information about the use of the service and the risks involved.
108
For example, to combined services the Directive 2015/2302/EU applies; to single service of
carriage of passenger by air the Regulation N 261/2004 and the Montreal Convention apply; to
carriage of passenger by rail the Regulation N 1371/2007 applies; to carriage of passenger by bus
the Regulation N 181/2011 applies; to carriage of passenger by sea and inland waterway the
Regulation N 1177/2010 applies; to single service of accommodation the Consumer rights
directive 2011/83/EU applies.
109
110
Regulation (EC) 261 (2004), Art 13.
treaties or conventions ratified by the country.111 Moreover, other legislation will be

applied, but only if it proves beneficial to the consumer.112
Brazilian law allows three grounds for the supplier’s exclusion of liability:
(1) fault of the victim (culpa da vítima), (2) fault of a third party (culpa de terceiro)
or (3) extraordinary circumstances, e.g. (a) caso fortuito, an event that the supplier
could not have avoided even if all due care had been exercised, and (b) force majeure
( força maior).113 Another cornerstone provision contained in the Civil Code is the
concurrent liability (shared liability) provision: ‘if the damage occurred with the
victim’s own contributory fault, the compensation will be established taking into
account the gravity of the victim’s fault in comparison with the fault of the author of
the damage’.114
Thus, if the damage occurred because of the consumer’s active or passive
behaviour, it is to be considered fault of the victim. The burden of proving exclusion
of liability lies with the supplier.
According to the CDC, the manufacturer, producer, builder or importer will not
be liable if he or she proves that (I) he/she did not put the product in the market;
(II) even though the product has been put in the market, the defect does not exist;
(III) there is an exclusive fault of the consumer or the fault is attributable to a third
party.115 A similar exclusion applies to the supplier of services, who will not be
liable if he/she proves that the service has no defect or there is an exclusive fault of
the consumer or the fault is attributable to a third party.116
Thus, for instance, most of the purchasers of counterfeit goods do not really
believe that the goods are counterfeit. They may sue the company whose brand is
well known in the market. Although the consumer has been injured by the product,
there is not any link between the damage and causality if the supplier can prove that
he or she did not produce the product and that it is counterfeit. This is a case of
exclusion of liability. Another ‘exclusion of liability’ is when the business can prove
no defect on the product or service. Under Brazilian law, whilst the consumer must
prove the damage and the link between the damage and the good or service, the
supplier must prove that the defect does not exist.117 This principle is the same for
goods and services covered by consumer contracts.
It is noteworthy that the CDC only set up exclusive liability and not concurrent
liability (shared liability) between the consumer and the supplier. However, the
courts have considered both, depending on the particular case.118 This is because
111
Act 8.078, 1990, Art 7.
112
STJ REsp 489.895/SP, j.2010.
113
Note: 1. Fault of the victim, 2. Third-party fault, 3. Extraordinary circumstances.
114
Act 10.406, 2002, Art 945.
115
Act 8.078, 1990, Art 12 § 3, (I) (II) (III).
116
Idem, Art 14 § 3, (I) (II).
117
118
STJ REsp 287.849/SP, j.2001.
Article 945 of the Civil Code sets forth concurrent liability between the parties where
they are equally blameless or equally at fault.
In Europe, the ‘exclusion of liability’ on consumer matters is spread out over
many pieces of legislation. There is not a standard framework like a code.
The ‘exclusion of liability’ found in the Directive on package travel and linked
travel arrangements was set forth in different provisions. The organiser and/or
retailer is liable unless the organiser proves that the lack of conformity is
(I) attributable to the traveller,119 (II) attributable to a third party unconnected with
the provision of the travel services included in the package travel contract and is
unforeseeable or unavoidable,120 (III) due to unavoidable and extraordinary circum-
stances,121 (IV) impossible122 or (IV) entails disproportionate costs, taking into
account the extent of the lack of conformity and the value of the travel services
affected.123
Whilst in Brazil the liability and the ‘exclusion of liability’ rules are found in the
CDC and also (if applicable) in special laws, in the EU the liability and the
‘exclusion of liability’ rules have to be found in the specific legislation applied to
combined services or single services. In Brazil, it is irrelevant whether the service is
combined or single.
Therefore, as already mentioned, regarding package travel contract in the EU,
both organiser and retailer are liable for the performance of the contract. In Brazil,
everyone in the chain of suppliers are liable for the performance of the contract in
view of the business risk. The company ought to make sure that their partner
companies were well chosen and that risks were managed. In Brazil, the traveller
may sue any company before the court. Companies have the right to seek reim-
bursement from other companies with whom they have business contracts.
In addition, the organiser and/or retailer may assert their ‘exclusion of liability’ if
the failure was attributed to the consumer, third party, force majeure or an unavoid-
able event.
The Brazilian model of joint liability of all suppliers involved in the chain of
services may sound strong at first glance. However, mainly in the travel and tourism
sector, where partnership is a requirement to sell package travel in the market, such
presumption of liability means a kind of certification amongst the suppliers. The
businesses have to ascertain that they conclude partnerships only with other reliable
businesses.124 This means that the different roles of the suppliers in travel and
tourism services are not relevant because they are jointly liable in a lawsuit.125
119
Directive 2015/2302/EU, Art 14 (3) (a).
120
Idem, Art 14 (3) (b).
121
Idem, Art 14 (3) (c).
122
Idem, Art 13 (3) (a).
123
Idem, Art 13 (3) (b).
124
Feuz (2003), p. 114.
125
Act 8.078, 1990, Art 7, Sole paragraph.
4.4.3 Right of Withdrawal
The consumer’s right of withdrawal is another critical point in the two systems. The
right of withdrawal means that the consumer shall be entitled to a period of days
granted by law to withdraw from a distance or off-premises contract, without giving
any reason and without penalty.
With respect to the traveller’s right of withdrawal on ‘package travel contract’,
Directive 2015/2302/EU sets forth different treatments. It focuses on the termination
of the contract by the organiser or the traveller. There are three instances when a
traveller can exercise the right of withdrawal. First, the traveller may terminate the
contract, but he or she shall be required to pay a fee to exercise the right of withdrawal
before the start of the package.126 Second, in the event of unavoidable and extraordi-
nary circumstances occurring at the place of destination or within its vicinity, the
traveller may withdraw without fee and shall receive full refund.127 Third, with respect
to off-premises contracts, the traveller has the right to withdraw from the package
travel contract within a period of 14 days without giving any reason.128
On the other hand, the organiser may terminate the ‘package travel contract’ in
two situations: first, if the number of persons enrolled for the package is smaller than
the minimum number stated in the contract and, second, in the event of unavoidable
and extraordinary circumstances that prevent the organiser from performing the
contract. In both cases, the organiser has to provide the traveller with a full refund
of any payments made and shall not be liable for additional compensation.129
The right of withdrawal is one of the most significant consumer rights, allowing the
consumer a chance to reflect on the contract, removing the danger of rash decision and,
in the case of distance and off-premises contracts, ensuring that the consumer is able to
enter into contract after the withdrawal period by making a fully informed choice. The
consumer shall have a right of withdrawal unless he or she has consented to begin the
performance of the contract during the withdrawal period and has acknowledged that
he/she will consequently lose the right to withdraw from the contract.130
126
Directive 2015/2302/EU, Art 12 (1); Member States shall ensure that the traveller may terminate
the package travel contract at any time before the start of the package. Where the traveller terminates
the package travel contract under this paragraph, the traveller may be required to pay an appropriate
and justifiable termination fee to the organiser.(..)
127
Idem, Art 12 (2); (..) the traveller shall have the right to terminate the package travel contract
before the start of the package without paying any termination fee in the event of unavoidable and
extraordinary circumstances occurring at the place of destination or its immediate vicinity and
significantly affecting the performance of the package, or which significantly affect the carriage of
passengers to the destination. In the event of termination of the package travel contract under this
paragraph, the traveller shall be entitled to a full refund of any payments made for the package, but
shall not be entitled to additional compensation.(..)
128
Idem, Art 12 (5); With respect to off-premises contracts, Member States may provide in their
national law that the traveller has the right to withdraw from the package travel contract within a
period of 14 days without giving any reason.
129
Directive 2015/2302/EU, Art 12 (3) (a) (b).
130
What is more, Consumer Rights Directive 2011/83/EU, amongst many other

exceptions, excluded the contract of accommodation in Article 16 (l) from the
right of withdrawal. That is to say, in the single service contract of accommodation,
the consumer traveller does not have the right of withdrawal at all. On the other hand,
Timeshare Directive 2008/122/EC lays down a 14-day right of withdrawal to protect
consumers against unwanted contracts.
The Consumer Rights Directive has extended the period of withdrawal to 14 days
but at the same time imposed many exceptions from the right of withdrawal, which
more generally decreases the level of consumer protection in the travel sector.
Such assessment delineates the specific single services not covered by the right of
withdrawal. This is the accommodation provided by hotels or holiday cottages or
cultural or sporting events, as mentioned in Recital (49) of the CRD. The provision
sets forth: ‘The granting of a right of withdrawal to the consumer could also be
inappropriate in the case of certain services where the conclusion of the contract
implies the setting aside of capacity which, if a right of withdrawal were exercised,
the trader may find difficult to fill.’ It appears a kind of inequality amongst contracts,
implying vulnerability.
Conversely, in Brazil, every consumer contract performed away from the busi-
ness premises, the so-called distance or off-premises contract, shall grant a right of
withdrawal to the consumer within a period of seven (7) days counted from the day
of the signing of the contract or the time the good or service was received. If the
consumer exercises the right of withdrawal, every amount paid by him or her during
the period of withdrawal shall be returned immediately, monetarily updated.131
In this regard, the right of withdrawal in Brazil is clearer to the consumer than the
right of withdrawal in Europe. The EU legislation grants or denies the right
depending on the type of the contract. This situation, which is not harmonised in
the EU legislation, might increase the consumer traveller’s vulnerability in the EU.
4.4.4 Contract of Adhesion or Standard Contract
In contract matters, consumer vulnerability is more obvious in the so-called contract

of adhesion (Brazilian terminology), also known as standard contract
(EU terminology). This contract spares parties the need to negotiate the contract
terms individually for every single transaction, providing a degree of uncertainty to
the parties. It supposes that the rights and obligations of the parties may be clearly
identified because they are not negotiated. But the standard contract, in view of its
one-sided characteristic, may easily exclude essential consumer rights or insert
unfair terms (EU terminology) or abusive clauses (Brazilian terminology) without
the consumer’s consent.
Although it is a named contract, it is in fact a method of contracting or a
contracting model for improving the efficiency of a business.
131
Act 8.078, 1990, Art 49 and Sole paragraph.
In Europe, there is no legal definition for the concept ‘standard contract’. It stems
from the doctrine and from the Directive on unfair terms in consumer contracts. The
proposal for a regulation on a Common European Sales Law has drafted the
following concept for ‘standard contract terms’: means contract terms which have
been drafted in advance for several transactions involving different parties, and
which have not been individually negotiated by the parties within the meaning of
Article 7 of the Common European Sales Law.132
In Brazil, the CDC in its Article 54 defined contract of adhesion as follows: the
one where clauses have been approved by the competent authority or established
unilaterally by the supplier of goods or services and the consumer has no chance to
substantially change the content.
The Civil Code prescribes that if the contract of adhesion includes ambiguous or
contradictory clauses, the interpretation most favourable to the adherent shall be
adopted.133 This provision is also confirmed by the CDC, where it sets forth that
contract clauses will be interpreted in such a way as is most favourable to the
consumer.134 Likewise, in the EU, where there is doubt about the meaning of a
term, the interpretation most favourable to the consumer shall prevail.135
Both systems point out that the language of the contract shall be clear. In the EU,
it states: ‘In the case of contracts where all or certain terms offered to the consumer
are in writing, these terms must always be drafted in plain, intelligible language.’136
In Brazil, the CDC sets forth: ‘the written form of the contract of adhesion shall be
set up using clear language and legible characters, in order to facilitate comprehen-
sion by the consumer’.137
Whilst in the EU the scope and variation of this contracting model refers to terms
in standard contracts, in Brazil it refers to clauses in contract of adhesion. Never-
theless, this comparison is merely simplistic whereas it only tackles the different
labels on both systems.
So far, the EU did not design an accurate legal definition for a standard contract as
it stems from Directive 93/13/EEC on unfair terms in consumer contracts. In
contrast, Brazil designed a definition for the contract of adhesion in Article 54 of
the CDC, as previously mentioned.
Despite these points, one slight difference may be noted: the CDC sets forth that it
is allowed to insert into a contract of adhesion a defeasance clause (termination),
taken as an alternative to the consumer’s choice. The insertion of such a clause does
not change the nature of the contract of adhesion.138 Thus, according to § 1 of Article
132
COM (2011) 635, Art 2 (d).
133
Act 10.406, 2002, Art 423.
134
Act 8.078, 1990, Art 47.
135
Directive 93/13/EEC, Art 5.
136
Idem, Art 5.
137
Act 8.078, 1990, Art 54, § 3.
138
Idem, Art 54, § 1, § 2.
54, not only a defeasance clause but also any clause inserted into the contract does
not change its nature.
On the other hand, in Europe, if the seller or supplier claims that a standard term
has been individually negotiated, the burden of proof in this respect shall be
incumbent upon him.139 Therefore, whilst in Brazil the insertion of a clause into a
contract of adhesion does not change the nature of the contract, in the EU the seller or
supplier must prove the insertion of a clause individually negotiated. European
authors have argued that such provision is absurd because other parts of Article
3 focus on the nature of a term, not on the contract as a whole.140
Indeed, the requirement of proof to ascertain the contract as a whole based on few
terms (or clauses) contradicts other provisions of Article 3 (2). The provision sets forth
that the fact that certain aspects of a term or one specific term have been individually
negotiated shall not exclude the application of this article to the rest of the contract.
Moreover, as a contract is a written statement and provides documentary evidence
for the agreement, usually proof will be limited to testimony of witnesses. It is
important to know if the uncorroborated testimony of one witness is credible or not
and whether it is sufficient proof for changing the method of contracting. Even so, it
will not change the nature of the contract as it shall face other strong provisions of
the Directive, as for instance that interpretation most favourable to the consumer
shall prevail.
Therefore, regarding the method of contracting, whether it is pre-formulated
standard contract or individually negotiated, such a method of contracting will not
alter the nature of the contract, on both systems. That is to say, it will always be a
consumer contract, and consumer rights shall apply.
4.4.5 Carriage of Passenger by Air: Delay, Cancellation

and Denied Boarding
Both systems, Brazil and the EU, grant rights to the consumer traveller in the event
of delay or cancellation of the flight that affects the contract. The air sector uses the
term passenger instead of consumer or traveller. Most significant in both systems is
the lack of a definition of passenger in the main pieces of legislation, but the rights
granted are slightly different concerning compensation, assistance and care, as well
as about material and immaterial damages.
In the EU, the Montreal Convention provides the grounds to calculate the
compensation for damages, which is assessed on a case-by-case basis. It depends
on the individual circumstances of the passenger.141 In addition, Regulation
261/2004 establishes standardised entitlements (regarding assistance and care) appli-
cable to all passengers, regardless of their individual circumstances, in the event of
denied boarding, cancellation or long delay of flights.
139
140
141
COM (2013a) 130 final, (1) (1.1).
In relation to cancellation, depending on the flight distance, the Regulation grants

flat-rate compensation between €250 and €600 per passenger. But compensation is
not due if the passenger was informed of the cancellation at least 14 days before the
departure date, if the flight was rerouted close to the original time, or because of
extraordinary circumstances the flight was cancelled. If the passenger decides to
continue the trip, the air carrier shall offer meals and refreshments; hotel accommo-
dation, if necessary; and transport between the airport and the place of accommo-
dation.142 If the flight was cancelled without any notice and the passenger used the
right of assistance with hotel accommodation, meals and transport, he or she can rely
cumulatively on the right to compensation between €250 and €600, depending on
the distance of the flight.143 As a result, in case of cancellation, the air company must
provide to the passenger both assistance and compensation.
In delays of between 2 and 5 h, passengers shall be offered by the operating air
carrier meals, refreshments, free-of-charge two telephone calls, telex or fax messages
or e-mails. When the time of departure is at least a day after the time of departure
previously announced, the air carrier shall offer hotel accommodation and transport
between the airport and place of accommodation (hotel or others).144
In denied boarding (due to overbooking), the operating air carrier shall immedi-
ately compensate the passenger depending on the flight distance, between €250 and
€600 per passenger (Article 7) and assist them in accordance with rights to reim-
bursement or re-routing (Article 8), right to care with meals, refreshments, hotel
accommodation, transport between the airport and the place of accommodation
(Article 9).
In Brazil, the Superior Court of Justice (STJ) has recognised that the contract of
air carriage shall be understood as a contract of consumer relationship. In this case,
the CDC does not exclude the Code of Aeronautics or the Montreal Convention.145
Since 1992, the STJ, an intermediary superior court, has held that immaterial and
material damages are not strictly linked since cumulative compensation of damages
can be claimed from the same fact.146 Even recognising that the CDC grants full
compensation for material and immaterial damages, the court will take into account
the law on which the claim was based to decide the dispute.147
After the Federal Constitution of 1988, there was no longer any doubt about
immaterial damages in Brazil.148 If the air passenger suffers personal injury for
142
Regulation (EC) 261 (2004), Art 9 (1) (a) (b) (c).
143
ECJ 04.09.2014 C-452/13 Germanwings GmbH v Ronny Henning.
144
Regulation (EC) 261 (2004), Art 9 (1) (a) (b) (c).
145
146
STJ Sumula 37.
147
STJ REsp 240.078/SP, j.2001.
148
Federal Constitution, Art 5 (V): ‘the person’s right is guaranteed to respond in proportion of the
offense, besides compensation for material and moral damages or image as well; (..) (X): the
intimacy, private life, honour and images of people are inviolable, ensuring the right to compen-
sation for material or moral damages, resulting from its violation’.
which the air carrier is liable, the passenger may request that the court award
personal injury compensation. Personal injury causes not only pecuniary (material)
damage but also non-pecuniary (immaterial) damage, such as pain, shock, psycho-
logical consequences of damage recognised by the Federal Constitution.
Therefore, the CDC, along with other general laws, special laws and infra-rules,
provides remedies, assessed on a case-by-case basis, that will allow the passenger to
claim for cumulative compensation of damages from the same fact.
On the other hand, the administrative rules enacted by ANAC, as Resolution
141/2010, revoked by 400/2016, provides standardised entitlements (relating to
material assistance) applicable to all passengers, regardless of their individual
circumstances in the event of denied boarding, cancellation or long delay of flights.
Cancellation (cancelamento), delay (atraso) and denied boarding (preterição de
embarque) depend on the passenger’s departure point rather than on the flight
distance. The following tables set forth the passenger’s rights in cases of cancella-
tion, delay and denied boarding (Tables 4.3, 4.4 and 4.5).
Table 4.3 Passenger’s rights on cancellation of flight

Feasibilities In the departure airport In the airport of connecting flight
1 Right to full reimbursement, including Right to full reimbursement and
boarding fee. In this case, the air carriage to the departure airport without
company may not provide material cost. The air company shall provide
assistance material assistance
2 Rebooking the flight, without cost, on a If the passenger decides to stay at the
date and time most convenient for the location, there is granted the right to
passenger. In this case, the air company reimbursement of the part of the
may not provide material assistance journey not used by him. In this case,
the air company may not provide
material assistance
3 If there are seats available, boarding Rebooking the flight, without cost, on a
shall be granted on the next flight, date and time most convenient for the
without cost. The flight may be provided passenger. In this case, the air company
by the same company or another. In this may not provide material assistance
case, the air company may not provide
material assistance
4 Boarding on the next flight, without
cost. The flight may be provided by the
same company or another. In this case,
material assistance.
5 Conclude the trip through other types
of transportation (bus, van, taxi, etc).
The air company shall provide material
assistance
Source: ANAC, Atraso e Cancelamento de Voo e Preterição de Embarque. ASCOM, 2a. ed,
jan.2014
Table: free translation, recompiled by the author
Table 4.4 Passenger’s rights on delay of flight over 4 h

material assistance
3 If there are seats available, boarding Boarding on the next flight of the same
shall be granted on the next flight of air company or another to the same
the same air company to the same destination without cost. In this case,
destination. The air company shall the air company shall provide material
provide material assistance assistance
assistance
5 Rebooking the flight, without cost, on a
date and time most convenient for the
passenger. In this case, the air company
may not provide material assistance
jan.2014.
Table: free translation and recompiled by the author
According to Article 27 of Resolution 400/2016, ‘material assistance’ means to

immediately satisfy passengers’ needs, without cost and compatible with the esti-
mated lead time from the original time of departure (see Table 4.6 below).
The critical point of this provision is the separation between appropriate accom-
modation and accommodation service. The provision did not mention hotel accom-
modation, thereby creating a gap. The term ‘appropriate accommodation’, which
may include any kind of accommodation without service, is relatively vague and
dispersed. This provision is unclear and hence consumer unfriendly.
Whilst in Brazil in case of delays over four hours the right of appropriate
accommodation and transport is granted,149 in the EU hotel accommodation, trans-
port and meals are granted only the day after the departure as it was planned for the
cancelled flight.150 In addition, in Brazil, after one-hour delay, the passenger’s right
of communication is unlimited,151 whilst in the EU it is limited to two phone calls.152
149
ANAC Resolution 141 (2010), Art 14 § 1 (III).
150
Regulation (EC) 261 (2004), Art 5 (1) (a) (b).
151
ANAC Resolution 141 (2010), Art 14 § 1 (I).
152
Regulation (EC) 261 (2004), Art 9 (2).
Table 4.5 Passenger’s rights on denied boarding (overbooking)

material assistance
3 If there are seats available, boarding Rebooking the flight, without cost, on a
shall be granted on the next flight of the date and time most convenient for the
same air company or another to the same passenger. In this case, the air company
destination without cost. In this case, the may not provide material assistance
air company may not provide material
assistance
4 Conclude the trip through other types of If there are seats available, boarding
transportation (bus, van, taxi, etc). The shall be granted on the next flight of the
air company shall provide material same air company or another to the
assistance same destination without cost. The air
company shall provide material
assistance
assistance
jan.2014
Table: free translation and recompiled by the author
Table 4.6 Material assistance

I Over 1 h Communication facilities such as telephone calls, Internet access, and the like
II Over 2 h Food according to the time, offering meals or individual voucher
III Over 4 h Accommodation, hospitality service in case of overnight stay and transfer round
trip
§ The carrier should not provide appropriate accommodation to the passenger whose domicile
1 is located in the city of the departure airport
§ Apart from overnight stay, should be offered services under number III to passengers with
2 special needs, according to Resolution 280/2013
§ The carrier may not offer material assistance if the passenger chooses for rearrangement in
3 another flight from the same air company, in a date and time most convenient, or receives
full reimbursement of the ticket.
Source: ANAC Resolution 400/2016 Art 27
Table: free translation and compiled by the author
However, the consumer passenger’s rights in the EU in case of cancellation, delay

and denied boarding are in good standard concerning to standardised entitlements
(regarding assistance and care)153. It is because the air companies in Europe are
obliged to pay flat-rate compensation to the passenger according to the appropriated
lenght of time of the journey.
Conversely, consumer passenger rights in Brazil in case of cancellation, delay
and denied boarding accounted for on a case-by-case basis, depending on the
individual circumstances of the passenger, where the passenger brings an action to
court, are in good standard. This is because Brazilian courts cannot restrict compen-
sation in regard to misuse of service.154 The immaterial and material damages are not
strictly linked since cumulative compensation of damages can be claimed from the
same fact.155 The compensation system of international treaties (Warsaw and Mon-
treal) is applicable but national law applies supletorily. That is to say, the courts use
the treaties as a reference, but at the same time the CDC prevails.156
In spite of the above, however, is it worth saying that concerning a case-by-case
basis where the passenger brings a file to the court, in the EU, each Member State has
a particular way of strengthening the consumer’s rights. Thus, material and imma-
terial damages may also be granted separately in some Member States.
4.4.6 Carriage of Passenger by Air: Baggage Destruction,

Loss, Damage or Delay
Under the Montreal Convention, the term ‘baggage’ means both checked baggage
and unchecked baggage.157 In Europe, Regulation (EC) 889/02 extended the scope
and changed the title of Regulation (EC) 2027/97 on air carrier liability in respect to
carriage of passengers and their baggage by air. The Regulation implemented pro-
visions of the Montreal Convention and laid down some supplementary rules.
The consumer passenger in the EU is entitled to compensation concerning
baggage destroyed, lost, damaged or delayed, which is limited to 1000 SDRs. In
euro, it is approximately €1220, unless a higher limit has been agreed between the air
company and the passenger to the extent that the passenger made a special declara-
tion, at the latest, at check-in by paying a supplementary fee. In the case of damage to
checked baggage, the passenger must write and complain within seven days, and in
the case of delay, within 21 days, in both cases from the date on which the baggage
was placed at the passenger’s disposal.158
153
Note: applicable to all passengers, regardless of their individual circumstances.
154
STF REsp 351.750-3/RJ, j.2009.
155
STJ Súmula 37.
156
STJ REsp 575.486/RJ, j.2004.
157
Montreal Convention, O.J. L194, 18.07.2001, Art 17 (4).
158
Regulation (EC) 889 (2002), Annex: Baggage delays, Destruction, loss or damage to baggage,
Higher limits for baggage, Complaints on baggage.
In Brazil, unlike the Montreal Convention (for international flights) and the
Brazilian Code of Aeronautics (for national flights), there is no statutory limit for
compensation in matters relating to baggage destroyed, lost, damaged or delayed.
The air company has 30 days to locate lost baggage, and only after that, if the
baggage was not found, shall it compensate the consumer passenger.159 Compensa-
tion is based on the limit established by the Montreal Convention for international
flights, 1000 SDRs, which in euro is approximately €1220 for each passenger, unless
the passenger has made a special declaration and paid a supplementary fee.160
As already said, such a limit is merely for reference, and the consumer passenger
is entitled to claim a different amount of compensation and also request material and
immaterial damages cumulatively when he or she brings an action to court.
Moreover, special declaration of baggage shall not place the burden upon pas-
sengers because according to the Civil Code (Article 734), if the company wants to
establish a flat-rate compensation scheme, it is lawful to request the passenger to
fulfil the special declaration of baggage. In this context, the passenger may present a
special declaration of baggage solely upon the request of the air company, not on a
voluntary basis. The limit for compensation is only allowed in exceptional cases in
consumer relationships between the supplier and a legal entity acting as a
consumer.161
It is not enough, however, to be a legal entity. In order to limit the compensation,
the courts are requiring several criteria, for example, the clause that limits the
compensation shall be a result of negotiation between parties.162
4.5 International Law
Actually, on international level, both notions of ‘traveller’ and ‘travel contract’ were
introduced by the CCV. The 1970 International Convention on Travel Contracts
(CCV) and the OECD Council Recommendation on Package Holidays by Air dealt
with the subject of travel.163 However, few countries have signed and ratified the
CCV. From Europe, only Italy keeps its position to date.
International law is derived from international agreements between countries and
primarily regulates the relation of sovereign states with one another. International
law in Brazil or any other country outside Europe has focused on the role of
internationals treaties or conventions between or amongst countries. On the other
hand, to a European, international means matters that straddle boundaries inside the
159
Portaria 675/GC-5 Aeronautic (2000), Art 35 § 2.
160
Montreal Convention, O.J. L194, 18.07.2001, Art 22 (2).
161
Act 8.078, 1990, Art 51 (I).
162
163
Without mention the Montreal Convention regarding liability of air carriers that carries a
particular content.
4.5 International Law 191
European Single Market and outside in a third country. Thus, taking into account this
peculiarity, the notion of international law is slightly different from Brazilian and
European perspectives.
Currently, the need to protect the weaker party to the contract is premised upon
the threat of no transnational liability and lack of justice. That is to say, there is a gap
of effective international agreements on recognizing that the traveller is the weaker
party to the contract. As further mentioned, two international organisations are
working on the issue.
Nowadays, the barriers between international and national law are being gradu-
ally eliminated. The doctrine of national sovereignty carrying the traditional apho-
rism lex non valet extra territorium is not absolute. Such recognition should be
credited to the development of business relations, which have grown up in the last
century. The markets that before were closed to exchanges started to open a
revolution in international trade. Such revolution mitigates the classic notion of
sovereignty through measures of cooperation. The phenomenon is clearly noted in
the EU and less noted in Brazil. This asymmetry can be explained by the fact that in
the EU, the issue is more sensitive because of the integration of the Members States
into a single market with cultural diversity.
Although the EU is trying to simplify the enforcement of a foreign judgment
without the need for a declaration of enforceability (exequatur), the recognition is
not automatic yet, and other details remain an obstacle. In Brazil, the ‘exequatur’
procedure is still a requirement and costly. The Superior Court located in the Capital
(Brasilia) is the only competent court to receive the request.
The issue on international jurisdiction requires international cooperation between
countries in recognizing the need for consumer traveller protection beyond their
borders. This would entitle the traveller to have the legal personality and capacity of
a special consumer worldwide. A framework already developed by the EU to
jurisdiction problems amongst Member States would achieve a result. That is to
say, a judgment given in one Member State should be recognised in the other
Member State without any special procedure being required.164 But, in practical
terms this is not properly effective and not fully automatic yet.
Nowadays, the need for protection of the traveller’s interest is increasingly being
recognised, even if the traveller is named a tourist, visitor or even consumer. Because
of the current need, two international organisations—the United Nations World
Tourism Organization (UNWTO) and the Hague Conference on Private Interna-
tional Law (HCCH)—have captured the core of the problem initiating an exhaustive
work towards an international agreement to protect tourists. The conventions being
drafted by the UNWTO and HCCH are different in content and scope. Whilst the
UNWTO’s Convention is fundamentally based on the goal to protect tourists in
emergency situations, in line with rights and obligations of tourism service pro-
viders, the HCCH’s Convention deals with cooperation and access to justice for
164
Regulation (EC) 44 (2001), Art 33; Regulation (EU) 1215 (2012), (36) (1). The Regulation
(EC) 44 (2001) was repealed by the latter.
international tourists. The UNWTO’s Convention underlies provisions in depth,

whilst the HCCH deals mainly with principles and forms of cooperation amongst
states. Although both target to protect the tourist, they are different in content, scope
and essence.165
This year, the UNWTO Secretariat harmonised the UNWTO Draft Convention
with the Draft Framework Convention on Tourism Ethics.166 According to
UNWTO, the Draft Convention has changed the initial scope, intertwining the
original purpose with the Convention on Tourisim Ethics. Till now, the organisation
continues to work on the Draft Convention. Therefore, further developments are
expected in the years to come. The Global Code of Ethics is a non-binding instru-
ment, which depends of the parties’ will, whilst the other Convention aims to
regulate rights and obligations of the parties. It will be interesting to see how the
harmonisation between the Framework Convention on Tourism Ethics and the
UNWTO Convention on the Protection of Tourists and Rights and Obligations of
Tourism Service Providers will work in practice.
On the other hand, the HCCH Draft Convention has reached the stage which the
Council on General Affairs and Policy of the Conference has noted the Final Report
on desirability and feasibility of a Convention, and an Expert Group has been set up
to present further comments on the Final Report.167 It is to be noted that the Final
Report of the Permanent Bureau of the HCCH has made a significant point in
stressing that ‘the intervention of a local authority appears to substantially alleviate
the vulnerability of the foreigner, especially on a temporary visit, and to facilitate the
communication between the tourist and the trader’.168
4.5.1 Tourist or Visitor, Traveller and Consumer
Fundamentally, tourists and visitors are travellers. There is no unanimity amongst

countries on the classification of such status. For statistics purposes, the UNWTO
has published recommendations on the concepts of tourist, visitor and traveller,
which is considered as guidelines by the travel and tourism sector.
In this regard, visitor is a particular type of traveller,169 and tourist is a visitor.170
According to UNWTO, a traveller is someone who moves between different
geographic locations, for any purpose and any duration.171 A visitor is a traveller
taking a trip to a main destination outside his or her usual environment, for less than
165
Sanches Lima (2017), p. 74.
166
UNWTO, CAP/CSA/29/7_Draft Convention_Protection of Tourists (2017).
167
HCCH| Council on General Affairs and Policy (2018), p. 2.
168
Guinchard (2018), p. 61.
169
UNWTO’s Glossary: travel/traveller.
170
IRTS 2008, 2.13.
171
IRTS 2008, 2.4.
4.5 International Law 193
a year, for any main purpose (business, leisure or other personal purpose) other than
to be employed by a resident entity in the country or place visited.172 A visitor
(domestic, inbound or outbound) is classified as a tourist (or overnight visitor) if
his/her trip includes an overnight stay, or as a same-day visitor (or excursionist)
otherwise.173 As to tourist (or overnight visitor), a visitor (domestic, inbound or
outbound) is classified as a tourist (or overnight visitor) if his/her trip includes an
overnight stay, or as a same-day visitor (or excursionist) otherwise.174
The UNWTO linked the travel/traveller concepts in a way that tourism is a subset
of travel. As to travel/traveller, travel refers to the activity of travellers. A traveller
is someone who moves between different geographic locations, for any purpose and
any duration (IRTS 2008, 2.4). Visitor is a particular type of traveller, and conse-
quently tourism is a subset of travel.
One might say that observing the principles of valid deduction, it sounds that
UNWTO did not violate the standards of deductive logic, whereas it is possible to
conclude that the main category is travel/traveller where visiting/visitor and tourism/
tourist are subset categories of travel/traveller. According to the Final Report
elaborated by the Expert of HCCH, ‘An important point is that the UNWTO
definition of a tourist goes beyond the non-professional definition of a tourist,
which tends to focus on leisure activities’.175 Indeed, taking into account the
diversity of situations in the field, the point highlighted in the definition of tourist
may facilitate the reasoning on further international policies.
Tourist
Overnight or Same-
day. Excursionist
otherwise
Visitor
Less than one year for
any purpose other
than to be employed
Traveller
Any purpose and
any duration
Source: Author
172
IRTS 2008, 2.9.
173
IRTS 2008, 2.13.
174
IRTS 2008, 2.13.
175
Guinchard (2018), p. 9.
Time is the main criterion. That is to say, how long the individual stays in another
environment will determine the person’s status: any duration (traveller), less than
1 year (visitor) or overnight and same-day trip (tourist). The ‘purpose’ criterion
seems secondary but not less significant.
To the European, ‘traveller’ means any person who is seeking to conclude a
contract,176 including business travellers as members of liberal professional, self-
employed or other natural persons.177 Although in the former Package Travel
Directive the definition of traveller did not exist in European law, there are studies
pointing out that some Member States included the term traveller in their codes. See
the topic VII, Europe, 1. Consumer Law, 1.4 Traveller.
In South America, emphasis falls on the consumer. The concept of consumer in
Brazil,178 Peru179 and Paraguay180 is similar. They classify as consumer not only
those who acquire goods and services but also those who use them. All victims of the
event, the so-called bystander, and any person exposed to commercial practices are
equated with consumers. In those cases, there is no need f or a contractual relation-
ship. Conversely, in Argentina,181 to characterise a consumer, the contract must be
always chargeable for goods and services, excluding from the concept of consumer
those who received the product for free.
It is feasible to say that travellers, visitors or tourists usually purchase goods
and/or services that fall within the scope of consumer law. All of them are consumers
in view of the need to acquire goods and services. However, not all consumers are
travellers, visitors or tourists, inasmuch as not everyone travels. In this sense, ‘travel
and tourism’ belongs to the field of consumer law.
Besides any legal consideration on visitors, one important point underlying the
difference between the popular and scientific use of words ‘tourist’ and ‘traveller’ is
that ‘tourist’ is an economic concept, whilst ‘traveller’ is easily attached with the
fundamental right of ‘freedom to travel’182 or ‘free movement of persons’.183
So far, in a purely legal perspective, whilst ‘traveller’ is a natural person with
subjective right, ‘tourist’ is a creation being used by policies targeting the tourism
industry.
176
177
Idem, Recital (7).
178
Act 8.078/90, Consumer Defence Code (CDC).
179
Decree (DL) 716/91—Ley de Protección al Consumidor.
180
Act 1.334/98—Ley de Defensa del Consumidor y Del Usurário.
181
Act 24.240/93—Ley de Defensa del Consumidor.
182
TEU and TFEU, 2010/C 83/01, ‘Freedom to travel’ is set forth by Art 77 (2) (c) of the.
Consolidated versions of the Treaty on European Union and the Treaty on the Function of the
European Union.
183
The Brazilian Federal Constitution: ‘Art 5, item XV – it is free in time of peace the movement
(of persons) within the national territory, and any person may, under the terms of the law, enter it,
remain therein or leave it with her/his assets.’
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“Superior Court” stj.jus.br/SCON.
“Sao Paulo Court of Appeal” esaj.tjsp.jus.br/cjsg/consultaCompleta.do?f¼1.
“Rio Grande do Sul Court of Appeal” tjrs.jus.br.
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Chapter 5
Conclusion: Travellers’ Protection
The traveller, in contrast with the consumer, has not a legal status defined by the law
in Brazil. Conversely, in the EU, a definition of traveller is found in Directive 2015/
2302/EU. In a broad sense, to both Brazil and the EU, the traveller is a consumer.
The traveller consumes goods and services under specific conditions demanding
specific legal attention. The vulnerability of the traveller is not about personal
characteristics, but about external factors such as language and cultural differences
or legal vulnerability such as jurisdiction. Languages have a direct influence on the
traveller’s ability to perceive the environment. It alters the sense of perception under
a foreign environment. The traveller is prompted into a more fragile condition than
the regular consumer when buying goods and services because he/she is out of his/
her domicile or jurisdiction, for a medium or short period of time.
The most obvious point of this condition is that the traveller is always outside of
his/her domicile and jurisdiction when travelling and is subjected to much vulner-
ability. The vulnerability exists regardless of the fact that the traveller is rich, poor,
educated, non-educated, credulous or wise.1 The fluidity of vulnerability in view of
the risk of the situation that the traveller is involved leads to the conclusion that it is
impossible to put an end to vulnerability through specific measures on the individ-
uals’ state and his/her characteristics. It also is not possible to put an end to
vulnerability through external factors, but it is possible to mitigate the vulnerability
through assertive consumer policy and an appropriate legal framework.
This is because risks are heightened by the fact that markets are becoming
increasingly complex and sophisticated, and the consumer lacks the capacity to
assess them reasonably in a traditional private law scheme that emphasises party
autonomy.
Legal vulnerability mainly related to jurisdiction is one of the most significant
barriers for the traveller, particularly for the international one, who will face a
number of obstacles to obtain a result through a lawsuit or even administratively
1

200 5 Conclusion: Travellers’ Protection
through consumer agencies. The consumer traveller may have access to court but
may get no effective result if he or she files a claim in his/her domicile against a
supplier located in another country. The consumer traveller will have to overcome
language and foreign currency problems. He/she will have to hire an expert in
another country. This usually entails delays and implies higher costs and have
become time-barred.
In consumer societies, contractual relationships are less personalised, appearing
to display contractual standard methods such as the standard contract
(EU terminology) or contract of adhesion (Brazilian terminology). Whilst the stan-
dard contract may contain unfair terms (EU terminology), the contract of adhesion
contains abusive clauses (Brazilian terminology). The standard method, however, is
a practice to improve the efficiency of the business rather than to satisfy consumers’
immediate needs. If the contract hides unfair terms or abusive clauses, this would
increase vulnerability.
Thus, predicting the likelihood of their occurrence, both systems set forth partic-
ular provisions. In the EU, if the contract contains a term providing for the applica-
bility of another law pertaining to another Member State, such a contractual term
under the conditions of Article 6 (1) of the Rome I Regulation shall not deprive the
consumer of the protection of the mandatory provisions of the law of his/her habitual
residence.2 In Brazil, such a clause is also voided by Article 112 of the Code of Civil
Procedure, combined with Article 101 (I) of the CDC. It sets forth that the judge
immediately shall assess the clause included in a contract of adhesion that establishes
jurisdiction. The judge shall not recognise his/her capacity to handle the case and
must send the files to the court of jurisdiction of the defendant’s domicile. In this
case, the judge can act without the party’s request.
The vulnerability of the traveller when travelling is relevant both in national and
international journeys, but the international environment is far more risky than the
national, whereas components of language, cultural differences, foreign currency
and bias such as xenophobia and racism, along with uncertainty about legal risks and
rights, may increase the traveller’s vulnerability in another country.
Interestingly, the understanding of vulnerability is rather different in Brazil than
in the EU, and its application to policies and legal cases is more doubtful in the EU
than in Brazil.
This is because in the EU, although recognising that the consumer is the weaker
party to the contract, he/she is concerned as an average consumer, who is reasonably
well informed and reasonably observant and circumspect.3In the EU the notion of
confident consumer prevails. Vulnerable consumers in the EU are those whose
characteristics make them particularly vulnerable to unfair commercial practices,
such as age, physical or mental infirmity or credulity. Only such consumers are likely
to be distorted by the practice in a way that the trader can reasonably foresee.4 It is
2
Regulation (EC) 593 (2008), Art 6 (2).
3
4
Idem, Recital (19).
5 Conclusion: Travellers’ Protection 201
noteworthy that the EU refers to consumer detriment, which is a negative outcome

experienced by individual consumers, relating to some benchmark such as reason-
able expectations. It focuses on the outcomes of the negative experiences encoun-
tered by consumers, comprising financial and non-financial detriment, including loss
of time. That is to say, the EU considers the detriment concerning all consumer
travellers and the vulnerability related solely to specific groups.5
Nevertheless, the presumption of the average consumer in the EU as the person
who is reasonably well informed and reasonably observant and circumspect contra-
dicts the recognition that the consumer is the weaker party to the contract.6
In contrast, Brazil understands that under a consumer relationship, everyone is
vulnerable under the principle of vulnerability contained in the CDC Article 4 (I).
Whilst all consumers are conceived as vulnerable, the hypervulnerable persons
(elderly, children and disabled) have special protection through special laws and
courts’ approach to the interpretation of legislation. When they are acting as con-
sumers, not only the CDC applies but also their particular laws.7
Vulnerability is assessed in abstracto on all consumers or in concreto on a group
of consumers who are particularly vulnerable, like those hypervulnerable persons.8
They are not in a position to have equal bargaining power mainly on account of the
difficulties in obtaining accurate information from the supplier/retailer. However,
hypervulnerables, owing to specific reasons, are more vulnerable than others. Such
reasons justify the creation of special provisions to fulfil the principle of equality.
More importantly, as a principle, the vulnerability of the consumer is the foun-
dation of consumer law. Furthermore, a given subject of law is a field of law if
singular principles and norms are exclusively related to that field. Those principles
and norms identify the field and differentiate it from other fields of law.9 In consumer
law, there are at least two strong main principles: (1) the vulnerability of the
consumer and (2) the transparency of the consumer relationship (duty of informa-
tion). Would it be possible to recognise any exclusive principle to the travel and
tourism sector that would place the subject as an independent field of law? So far, the
set of laws is not sufficiently precise and developed to permit this assertion.
In this context, this work assumes that both Brazil and the EU shall increase the
travellers’ protection within the scope of the consumer protection scheme since
the traveller is a consumer by logic causation. In most of the cases, consumption is
the intimate cause of travelling, even when encapsulated in business, religion,
education, health and family or leisure purposes. In such cases, the component of
consumption will be there. There is often a reason for travelling but not often a
reason for consumption. Even if someone travels without a reason, in the strict sense
the travel itself is the reason for travelling.
5
6
See for example Regulation (EC) 1371 (2007) Recital (3): “Since the rail passenger is the weaker
party to the transport contract, passengers’ rights in this respect should be safeguarded.” Regulation
(EC) 593 (2008), Recital (28).
7
For instance: Act 10.741, 2003, Statute of elderly; Act 7.853, 1989, Statute of disabled person.
8
Act 10.741, 2003, Statute of Elderly; Act 8.069, 1990, Statute of children and teenager; Act 7.853,
1989, Statute of disabled person.
9
Bandeira de Melo (2003), p. 45.
Is it possible for a traveller to not be a consumer? Actually, there are those

travelling in extreme vulnerability such as an ‘asylum seeker’, the so-called refu-
gees. As they move mainly across nation-state borders, they are travellers too, but
hardly in the concept of consumption. They have a reason for travelling but not a
reason for consumption. These individuals travel because of a well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular
social group or political opinion. They are outside of the country of their nationality
and are unable to or, owing to such fear, are unwilling to avail themselves of the
protection of that country.10
Therefore, in such an extreme vulnerability, any regulation of refugees ought to
prescribe that such a travel is outside of the scope of consumer regulation.
In the EU, the current Directive 2015/2302/EU is focused on the traveller. The
Directive is the first step to a better and more coherent approach in the travel and
tourism sector as it refers to traveller and no longer solely on consumer. However, in
a broad perspective, there is room for improvement, whereas distortions on partic-
ular issues raise doubts as to precisely what the consumer protection law in the EU
might end up with. For instance, there is no right of withdrawal for hotel accommo-
dation (single services) that meets the concept of vulnerability. Regarding the right
of withdrawal, there are different remedies in the Directive. First, the traveller may
exercise the right of withdrawal before the start of the package provided he/she pays
a fee.11 Second, he/she may exercise the right without a fee in the event of
unavoidable and extraordinary circumstances.12 Third, with respect to off-premises
contracts, the traveller has the right to withdraw from the package travel contract
within a period of 14 days without giving any reason.
Even more, the Directive clarified and modernised the scope of travellers’
protection when purchasing combinations of travel services for the same trip or
holiday by bringing within its scope different forms of online packages and linked
travel arrangements.13 The Directive considers the traveller as a legal person stating:
Art 3 (6), ‘traveller’ means any person who is seeking to conclude or is entitled to travel on
the basis of a contract concluded within the scope of this Directive;[. . .].
Finally, the Directive points out that the majority of travellers buying packages or
linked travels arrangements are consumers within the meaning of Union consumer
law.14
Although the Directive is consistent with market needs, it carries many excep-
tions requiring a combined and exhaustive analysis that much often distorts accu-
racy. It could have been reduced to a more consistent legal instrument.
10
United Nations High Commissioner for Refugees—UNHCR. Convention Relating to the Status
of Refugees (2012).
11
12
Idem, Art 12 (2).
13
COM (2013) 512, (3) (3.1).
14
Directive 2015/2302/EU Recital (7).
5 Conclusion: Travellers’ Protection 203
In spite of the arguments on codification in the European level in view of the

difficulties of national implementation, among other arguments, this study shares the
idea with European authors, who advise to consolidate the various different pieces of
EU legislation into one legislative instrument, which could be called the ‘EU Travel
Code’15 or ‘Consumer Travel Directive’.16
Thus, in the EU, there would be two possible ways to improve the current
scenario: (a) the more ambitious development of a comprehensive code or (b) the
now technically feasible Consumer Travel Directive.
The code would ensure that each term was used consistently, and a set of
principles, particularly the vulnerability of the traveller, may be considered to
guide the reasoning of legal practitioners. This would also allow the consolidation
in one instrument of different provisions from different directives that apply to travel
and tourism.17
On the other hand, the Consumer Travel Directive, technically by nature, would
establish the connection between consumer and traveller and beyond consumer-
related issues, and it could disclose the obvious path already published by the
UNWTO—that ‘Tourism is therefore a subset of travel and visitors are a subset of
travellers’.18
In Brazil, although the legal scenario is technically more complex, it is reasonable
to conceive the travellers’ protection scheme, that is to say, traveller’s protection
more specifically as a subset of consumer protection. However, to mention the
travellers’ protection in a legal framework would demand a new provision in
the Constitution or an international convention (treaty) signed by the country in
the scope of human rights establishing the traveller as a legal person. In addition, a
new statute as a special law that would set up the rights of this person would be
welcome. This special law would meet the microsystem of consumer protection in
line with the CDC.19 The judges from the STF have stated that the main focus of the
CDC is not to regulate a particular field of law but rather to protect a category of
persons, even if such a person is indirectly also protected by other special laws.20
This is why a special law in a strict sense should protect the traveller, because there is
room for a new special travel law.
15
IP/A/IMCO/ST/2011-17 (2012), p. 33.
16
17
For instance: Directives on unfair terms in consumer contracts, on unfair business-to-consumer
commercial practices, on consumer rights, on services in the internal market, on timeshare con-
tracts, and on package travel contracts. Yet, it would also consider regulations regarding contract
law (Rome I and II) transport and jurisdiction (Brussels I).
18
UNWTO, United Nations World Tourism Organization (2010), International Recommendations
for Tourism Statistics 2008, (2.12).
19
Note: the current laws that protect the hypervulnerable persons have grounds in the Constitution,
such as Art 230 CF and Act 10.741, 2003, Elderly; Art 227 CF and Act 8.069, 1990, Children and
Teenager; and Art 7 XXXI and Act 7.853, 1989, Disabled person.
20
STF REsp 351.750-3/RJ, j.2009, re vote of Min. Cezar Peluso.
It is noteworthy that the vulnerability of the traveller is not about personal

characteristics that make he/she particularly vulnerable, like the elderly, children
and teenager or disabled. All of them may also be a traveller in a particular time and
situation. The traveller’s vulnerability is seen in external factors like language and
cultural differences, whereas even when the traveller travels inside his/her own
country he/she may typically face different dialect, accents and different cultural
behaviours. Different languages lead their speakers to different perceptions and
therefore to different worldviews. Languages have a direct influence on the travel-
ler’s ability to perceive the environment. Languages represent barriers as they alter
the sense of perception under another environment. Moreover, in both legal systems,
the traveller can be exposed to intolerance on account of racism, xenophobia and
ethnocentrism, with limited capacity to react properly. Nevertheless, in this regard,
the problem is more accentuated in the EU rather than in Brazil. The EU combats
racism and xenophobia but at the same time tolerates political parties that exercise
‘hate speech’. In contrast, Brazil repudiates racism directly and xenophobia indi-
rectly. However, private groups with ‘hate speech’ do exist in the EU and in Brazil,
but in both locations, they are repressed.
The traveller’s vulnerability is identified as abstract vulnerability of all con-
sumers and concrete vulnerability of special groups of consumers, herein already
mentioned. The traveller’s vulnerability mainly stems from consumers who travel to
different markets and different cultures and are submitted to different laws. It
requires special worldwide attention.
The ‘travel and tourism’ sector in Brazil is based on the Tourism National Statute,
the CDC, the Civil Code and scattered laws. However, the Tourism National Statute
focuses on the relationship between the government and the tourist service providers
rather than on the consumer relationship. Therefore, the traveller is not protected by
the Tourism Statute but rather by the CDC as a regular consumer.
In the EU, in view of the variety of laws where different norms govern different
issues in the absence of a consumer code, an intensive analysis can lead to
unpredictable results. As it happens, a Consumer Travel Code or a Consumer Travel
Directive would fit to empower rights of the travellers and, hence, the economy as a
whole.
In contrast, in Brazil, a provision inserted into the Federal Constitution or an
international convention elevating the traveller to the status of a legal person would
be welcome, and secondarily, a ‘Statute of Traveller’ regulating the traveller’s rights
could fill the legal gap.
Without any questionable cause, the traveller is the main pillar of the economic
activity related to travel and tourism. Whilst tourism is an economic activity tied
with travel, travel itself refers to the activity of travellers. Therefore, the existence of
the traveller is the intimate cause of travelling, which makes tourism an economic
activity. There would be no tourism and no economic activity without the traveller,
who obviously travels. Hence, promoting the traveller to a legal status is significant
in relation to laws that include protection, mainly the fundamental right of ‘consumer
protection’.
Travel and tourism itself has a complex nature. It can refer to a leisure or recrea-
tional activity, business, religion, health, study and sport activities. It also includes the
References 205
activity of visiting relatives or friends, or even exclusively consumption. Overall, such

activities fall within the scope of economic activity, given the environmental impact on
the place of destination where the traveller is the central player.
This work thereby leads to conclude that without a legal status in Brazil but with a
legal status in the EU, the traveller is indeed a consumer that consumes specific
goods and services when travelling. Because the traveller is always out of his
domicile and jurisdiction, this particular situation turns into specific vulnerability.
It is translated into external vulnerability (language, xenophobia, racism, foreign
currency and ethnocentrism) and legal vulnerability (jurisdiction), boosting the
assumption of vulnerability of the traveller. The points explored in the book demys-
tify the strong illusion of invulnerability of the consumer traveller like the notion
of confident consumer, because the most experienced traveller has always several
difficulties abroad. It means that in such conditions, the traveller is a special
consumer and needs protection.
References21,22
Bandeira De Melo C (2003) Curso de Direito Administrativo. Malheiros, São Paulo

COM (2013) 512. On package travel and assisted travel arrangements, amending Regulation
Directive 2005/29/EC. On Unfair Commercial Practices
Directive 2015/2302/EU. On package travel and linked travel arrangements, amending Regulation
IP/A/IMCO/ST/2011-17 (2012) Study on implementation of the package travel directive. EU
Regulation (EC) 1371 (2007) On rail passengers’ rights and obligations
Regulation (EC) 593 (2008) On the law applicable to contractual obligations (Rome I)
STF REsp 351.750-3/RJ. (j.2009). Varig S/A - Viação Aérea Rio Grandense v Ana Maria da Costa
Tonner K, Shuster A (2005) Protecting the rights of passengers and holidaymakers. ECLG/039/05.
European Consumer Law Group, Brussels
UNWTO, United Nations World Tourism Organization (2010) International recommendations for
tourism statistics 2008. New York: Series M N 83/Rev.1
21
22
“Senado Federal” legis.senado.leg.br is the source for Brazilian legislation.
Brazilian court cases were researched on different sources:
“Supreme Federal Court” stf.jus.br/portal/jurisprudencia/pesquisarJurisprudencia.asp.
“Superior Court” stj.jus.br/SCON.
“Sao Paulo Court of Appeal” esaj.tjsp.jus.br/cjsg/consultaCompleta.do?f¼1.
“Rio Grande do Sul Court of Appeal” tjrs.jus.br.
“Federal Regional Court of 3rd Region” trf3.jus.br/NXT/Gateway.dll?f¼templates&fn¼default.
htm&vid¼trf3e:trf3ve.
Annexes: Brazilian Statutes and Flowcharts
of EU Package Travel Directive
Brazilian Consumer Defence Code (Part)
The Articles referred to are solely those mentioned in this book.

Act 8.078 enacted on 11th of September 1990
TITLE I
Consumer Rights
CHAPTER I
General provisions
Article 1: This Code sets forth the norms for consumer protection and defence,
regarding public order and social interest, according to Articles 5, paragraph
XXXII, 170, and paragraph V of the Federal Constitution and Article 48 of its
Transitional Dispositions.
Article 2: A consumer is any physical person or legal entity who acquires or uses
goods or services as a final addressee.
Sole paragraph: The concept and status of consumer is extended to a collective
of individuals, that may even be indeterminate, who have participated in con-
sumer relationships.
Article 3: A supplier is any individual or legal entity of public or private nature,
national or foreign, as well as other entities not legalized, that develop production
activities, assembly, creation, construction, transformation, importing, exporting,
distribution, or commercialization of goods or services.
§ 1. Goods are any good, portable or not, material or immaterial.

Contracts, https://doi.org/10.1007/978-3-319-98376-9
208 Annexes: Brazilian Statutes and Flowcharts of EU Package Travel Directive
§ 2. Service is any activity available in the consumer market, for which there is
financial compensation, including those derived from bank activities, with a
financial, credit, or insurance nature, excluding those resulting from labour
relations.
CHAPTER II
National Policy for Consumer relationships
Article 4: The objective of the National Policy for Consumer relationships is to
assist consumers in their needs for protection, imposing respect for the con-
sumer’s dignity, health, and safety, protecting their interests and ensuring trans-
parency and harmony in consumer relationships, based on the following
principles: (text added by Act 9008 of March 21st, 1995)
I. recognition of consumer vulnerability in the consumer market;
II. government action in order to effectively protects the consumer;
a. Through direct initiatives.
b. Through incentives given toward the creation and development of repre-
sentative associations.
c. Through State presence in the consumer market.
d. Assuring that goods and services will abide to appropriate quality, safety,
durability and performance standards.
CHAPTER III
Basic Consumer Rights
Article 6: The following are basic consumers’ rights:
I. the protection of the consumer’s life, health, and safety against any risks arising
from any practices due to the supply of goods and services considered harmful or
dangerous;
II. the education and information about the adequate level of consumption of
goods and services, ensuring freedom of choice and equality in contractual
procedure;
III. the appropriate and clear information about different goods and services, with
correct details in regard to quantity, characteristics, composition, quality, tax and
price, as well as the risks involved;
IV. the protection against misleading and abusive publicity, unfair commercial
methods that are coercive or unlawful, as well as against practices and abusive
clauses that or imposed as part of the goods or services supplied;
V. the modification of contractual clauses that impose disproportionate instal-
ments or its revision based on supervening facts that make the contractual clauses
exceedingly expensive;
VI. the effective prevention and reparation against material and immaterial
damages, even if the damage is individual, collective, and diffused;
Annexes: Brazilian Statutes and Flowcharts of EU Package Travel Directive 209
VII. the access to justice and to administrative entities preventing and repairing
material and immaterial damages, even if the damage is individual, collective,
and diffused, as well as ensuring the judicial, administrative, and technical
protection to those in need;
VIII. the facilitation of consumer defence when there is a litigation, including the
inversion of the burden of proof in favour of the consumer in a civil action when,
by the discretion of the judge, to decide that the claim holds truth or when the
consumer is hipossuficiente (disadvantaged) according to ordinary rules of
experiences;
IX. (vetoed)
X. the provision of appropriate and effective public services, in general.
Article 7: The rights set forth in this Code do not exclude any other rights that
may come as a result of international treaties or conventions ratified by Brazil. In
addition, they do not exclude the internal legislation on regulations set forth by
administrative authorities with jurisdiction, as well as any other rights that stem
from the general principles of Law, analogy, custom and equity.
Sole paragraph: lf the offense was carried out by more than one author everyone
will be jointly liable for the compensation of damages according to the norms of
consumption.
CHAPTER IV
Quality of Products and Services and Damage
Prevention and Reparation
SECTION I
Health and Safety Protection
(..)
SECTION II
Liability due to the fact of the good and service
Article 12: The manufacturer, producer, builder (whether domestic or foreign),
and the importer are liable, regardless of guilt, for damages caused to consumers
due to defects linked with the project, manufacture, construction, assembly,
formulas, manipulation, presentation or packaging conditions of their products,
as well as lack of information or providing inadequate information about public
use and risks.
§ 1(..) and § 2 (..);
§ 3. The manufacturer, producer, builder or importer, will not be liable if s/he

proves that:
I. s/he did not put the product in the market;
II. even though the product has been put into the market, the defect does not exist;
III. there is an exclusive fault of the consumer or the fault is attributable to a third-
party.
Article 14: The supplier of services is liable regardless of guilt, for damages
caused to consumers due to defects relating to the provisions of services, as well
as insufficient or inadequate information about the use of the service and the risks
involved.
§ 1. (..)
§ 2. (..)
§ 3. The supplier of services will not be liable if s/he proves that:
I. There is no defect in the service s/he provided for.
II. There is an exclusive consumer’s fault or the fault is attributable to a third-
party.
§ 4. The personal liability of individual professionals will be assessed based on
fault liability.
Article 17: For the purpose of this section, all victims of the event have the same
rights as consumers.
SECTION III
Liability on defect of good or service
(..)
Article 20: The supplier is liable for any defective service by low quality that
makes the service unsuitable for consumption or diminishes the value of the
benefit accruing to them. The supplier is also liable for defects found on the
difference between the service acquired by the consumer and what was offered
and advertised by the supplier. In such a case, the consumer may choose:
I. the re-execution of the services without additional costs, whenever suitable,
II. the restitution of money paid, updated on a daily basis and compensation for
personal injury,
III. proportional price reduction.
(..)
Article 25: It is forbidden for any contractual clause to seek to exclude, hinder, or
diminish the liability to provide compensation mentioned in this article or in the
previous ones.
§ 1. If there is more than one party liable for the damages, all parties involved will
be collectively liable to provide compensation as mentioned in this section, as
well as in the previous sections.
§ 2. If the damage is caused by a component that is part of the good or service, the
manufacturer, the supplier, or intermediary, as well as the one who introduced the
component or the service in the market, shall be jointly liable.
SECTION IV
Loss of rights and limitation of actions
Article 26: The right to complain about defects, which are of easy and apparent
perception, can be invoked within:
I. Thirty days, referring to non-durable goods and services.
II. Ninety days, referring to durable goods and services.
§ 1. These periods of time start to be counted at the time the good is effectively
delivered or at the time the services are concluded.
§ 2. To stop the loss of rights, there will be needed:
I. A complain formulated by the consumer to the supplier of goods or services to
receive a negative answer, which shall be transmitted in an unambiguous form.
II. (vetoed)
III. The start of a civil investigation up to its end.
§ 3. If the defect is not visible the period to not lose the right of complaint starts at
the moment the defect is uncovered.
Article 27: The intention of achieving compensation for the damages caused by
facts of goods or services as set forth in Section II of this Chapter is limited to five
years. The period of time to claim starts at the time the damage and the author of
the damage were identified.
SECTION V
Disregarding the Legal Entity
(..)
CHAPTER V
Commercial Practices
SECTION I
General Provisions
Article 29: Any person exposed to what is described in this chapter and the next
will be considered equal to consumer.
SECTION II
Offer
Article 30: All information or advertising sufficiently precise, broadcast through
any means of communication, in regard to any good or service offered or
presented by the seller, obliges him and accounted as part of the contract, will
be performed by the parties.
Article 31: The offer of goods or services shall assure transmission of informa-
tion correctly, clearly, precisely, comprehensive and in Brazilian Portuguese
language in regard to goods and services’ characteristics, quality, quantity,
composition, price, warranty, period of validity and place of origin, among
other pieces of information. The offer shall also inform about eventual risk that
the good or service may pose to the health and safety of the consumer.
Article 34: The supplier of a good or service is jointly liable for the actions taken
by their representatives.
Article 35: In the case that the seller who offers a good or service refuses to
follow the terms of the offer or advertising, the consumer may choose one of the
following:
I. to demand that the seller follow the terms of the offer or advertising,
II. to accept another equivalent good or service,
III. to cancel the contract and pursue the restitution of money paid in advance
updated on a daily basis, and compensation for personal injury.
SECTION III
Advertising
Article 37: Any misleading or abusive publicity are forbidden.
§ 1. It is misleading in any type of information or communication of advertising,
entirely or partially false, or in any other way, even by omission that is able to
mislead the consumer in regard to the nature, characteristics, quality, quantity,
properties, origin, price and any other data related to products and services.
§ 2. It is abusive, among other discriminatory publicity of any nature, that incites
violence, exploits fear or superstition, takes advantage of the weaknesses of
children’s judgment and their behaviour, disrespects environmental values, or
that is capable of inducing the consumer to behave in a harmful or dangerous way
that affect their health or safety.
§ 3. For the purpose of this code, the publicity is misleading by omission if it fails
to inform about essential data of the good or service.
Article 38: The burden of proof regarding the truthfulness and correctness of the
information or advertising communication is up to whom produces it.
SECTION IV
Abusive Practices
Article 39: The seller of goods or services is forbidden, among other abusive
practices, to:
I. condition the good or service delivered to the delivery of another good or
service, as well as specific quantitative limits without just cause;
II. refuse to accept a consumer request, if there is enough quantity available in
stock and, also, taking into account uses and customs;
III. send or handle any good or service to the consumer without it having been
requested;
IV. take advantage of any weakness or ignorance of the consumer, with respect to
his age, health, knowledge or social condition, in order to impose its goods or
services;
V. request an excessive advantage of the consumer;
VI. execute services without having provided a budget and obtained explicit
authorization from the consumer, except if the parties had already entered in
previous agreement.
VII. forward diminishing information related to any action exercised by the
consumer while practicing his rights;
VIII. insert any good or service into the consumer market that is not in accor-
dance with the norms set forth by official agencies or, in case these norms do not
exist, by the Brazilian Technical Norms Association—ABNT or another entity
accredited by the National Metrology, Normalization and industrial quality
council (CONMETRO);
IX. refuse to sell goods or services directly to one who is willing to acquire it and
can afford to pay for it, except in cases of intermediation regulated by special
laws;
X. increase the price of the good or service without just cause (included by Act
8.884 of June 11, 1994);
XI. (..)
XII. not establish a deadline for the delivery of his contractual obligations or
leave the establishment of the initial term of his obligation open to on conve-
nience (added by Act 9.008 of March 21, 1995);
XIII. apply a mathematical formula or rate to the contract different to the legal
rates or to what had been established in the contract (added by Act 9.870 of
November 23, 1999).
Sole paragraph: The products delivered or services provided to the consumer in
the hypothesis of item III are also extended to free samples, for which there is no
payment.
SECTION V
Charging for Debts
Article 44: The public agencies that protect the consumer will maintain and
update a database of substantiated claims against suppliers of goods and services.
They shall divulge a list of those claims annually. The list will provide the
information on whether the claim was settled or not by the supplier.
§ 1. The information input in the database will be available for consultation by
any interested parties.
SECTION VI
Consumer Registration and Databases
(..)
CHAPTER VI
Contractual Protection
SECTION I
General provisions
Article 47: Contract clauses will be interpreted in such a way as it is most
favourable to the consumer.
Article 49: The consumer has the right of withdrawal from a distance or
off-premises contract, in a period of seven days, counted from the date of signing
the contract, or at the time the good or service was received.
Sole paragraph: If the consumer exercises the right of withdrawal, every amount
paid by the consumer, during the period of withdrawal, shall be returned imme-
diately to him including any costs monetarily updated.
SECTION II
Abusive Clauses
Article 51: Are null and void, inter alia, clauses that impose any of the following
situations:
I. to remove, exonerate or lighten the supplier’s liability for any nature of defects
found in goods or services that leads to waiver or abandonment of rights. ln any
consumer relationships between the supplier and a legal entity acting as a
consumer, the compensation may be limited in justifiable situations;
ll. that void consumers’ option for the reimbursement of any amounts already
paid, in the cases foreseen by this Code;
lll. that transfer responsibilities to a third party;
IV. to set up unfair obligations, which are taken as abusive or that may place the
consumer in exaggerated disadvantageous situation or be incompatible with the
principles of good faith and equity;
V. (Vetoed);
VI. transfer the burden of proof to the consumer;
VII. determine the compulsory use of arbitration;
VIII. elect a third party to conclude or undertaking any other legal obligation, on
behalf of the consumer;
IX. that leaves to the seller the option to conclude or not the contract.
X. enable the supplier, directly or indirectly to change the price unilaterally;
XI. allow the supplier to cancel the contract unilaterally without providing the
same right to the consumer;
XII. oblige the consumer to repay any costs incurred in the process of collecting
the debts, if the same right is not also given to the consumer against the supplier;
XIII. authorize the supplier to unilaterally change the content or the quality of the
service, after the contract has been signed;
XIV. break environmental laws or make possible to infringe these Laws;
XV. be in disagreement with the consumer protection system;
XVI. allow the waiver of right to be reimbursed due to necessary betterment.
§ 1. It is presumably exaggerated, among other cases, the disadvantage that:
I. offends the fundamental principles of the judicial system;
II. limits fundamental rights or obligations intrinsic to the nature of the contract,
so as to threaten the objective or the balance of the contract;
III. is exceedingly costly for the consumer, considering the nature of the contract,
the interests of both parties, and other circumstances that may be pertinent to
the case.
§ 2. lf a clause considered abusive is nullified, this does not void the contract,
unless in the absence of that clause, and spite of any efforts of integration, the
result is excessively costly to any of the parties involved.
§ 3. (Vetoed).
§ 4. Any consumer or consumers’ organizations are entitled to require to the
Public Prosecution, to take the appropriate measures to nullify the clause in the
contract that goes against what is set forth by this Code or that in any other way
fails to ensure a fair balance in the rights and obligations of both parties.
Article 52: In the supply of goods or services involving credit or financing
provided to the consumer, the supplier must, among other requirements, inform
the consumer in advance about:
I. the price of the good or service in domestic currency;
II. the amount of interest and the effective annual rate of interest;
III. the extra costs that are legally foreseen;
IV. the number and frequency of payments of the instalments;

V. the total amount payable, with and without financing.
§ 1. The late payment penalties resulting from breach of the obligations may not
exceed 2% of the value of each instalment.
§ 2. It is granted to the consumer to advance payment entirely or partially before
the end of the contract, taking into account the reduction of interests and other
expenses proportionally.
Article 53: In contracts related to movable or immovable property purchased by
instalments, or in any fiduciary transfer of assets to guarantee, it is null-and void
clauses those that set forth total loss of the instalments already paid to the creditor,
who due to the lack of the payment requests to the consumer the termination of
the contract and returning of the goods already transferred to him.
§ 1. (..)
§ 2. (..)
§ 3. The contracts referred to by the wording of this article shall be set forth in
current national currency.
SECTION III
Contract of adhesion
Article 54: “A contract of adhesion is one where clauses have been approved by
the competent authority or established unilaterally by the supplier of goods or
services without the consumer having a chance to change its content
substantially”.
§ 1. The insertion of a clause into a standard form does not change the nature of
the contract of adhesion.
§ 2. It is allowed to insert into a contract of adhesion a defeasance clause, taken as
an alternative up to the consumer’s choice, with no prejudice of the provision in §
2 of the previous article.
§ 3. The written form of the contract of adhesion shall be set up using clear
language and legible characters, in order to facilitate comprehension by the
consumer.
§ 4. The clauses that limit consumers’ rights shall be highlighted, so that they can
quickly and easily be understood.
§ 5. (Vetoed).
CHAPTER VII
Administrative Sanction
Article 57: A fine shall be imposed and the penalty shall be proportionate to the
gravity of the infringement, to the advantages obtained and to the economic
condition of the supplier. It shall be applied according to administrative pro-
cedures and reverted to a Fund, which is regulated by Act 7.347/85 turning the
amount to the Union, States’ Funds or Municipals’ Funds of consumer protection.
Sole paragraph: The fine shall not be less than two hundred and not over three
million times of the Fiscal Reference Unit (UFIR), or any other rate that may
further replace the UFIR.
TITLE II
Penal Sanction
Article 66: If the supplier misleads actions or omissions, which are relevant in
relation to the nature, characteristics, quality, quantity, safety, performance,
durability, price or warranty of products and services, the sanction is three months
to one year of imprisonment and payment of a fine.
§ 1. the same sanction will be applied to those who endorse the offer.
§ 2. If the supplier had no intention of incurring the crime, the sanction is one to
six months of imprisonment or payment of a fine.
Article 67: If the supplier is aware or should be aware that the advertisement is
misleading or abusive, the sanction applied is: three months to one year impris-
onment and payment of a fine.
Article 68: If the supplier is aware or should be aware that the advertisement is
misleading and may induce the consumer to behave dangerously against his
health or safety, the sanction applied is: six months to two years imprisonment
and payment of a fine.
Article 69: If the supplier fails to organize factual, technical and scientific data,
which are the grounds of the advertisement, the sanction applied is: one to six
months of imprisonment or payment of a fine.
TITLE III
The defence of the consumer in the court
CHAPTER I
General provisions
(..)
Article 81: The defence of consumers’ rights and interests as well as the victims
might be exercised in court either individually or in group.
Sole paragraph: The collective defence in-group will be exercised in the fol-
lowing situations:
I. (..)
II. (..)
III. Whether the rights or interests are individually homogeneous as well as those
arising from the same source.
Article 82: For purposes of Article 81, sole paragraph, are entitled concurrently
with each other:
I. The Public Prosecution;
II. The Federal Union, the States, the Municipalities and the Federal District;
III. The agencies or entities tied directly or indirectly with the Public Adminis-
tration, even if not a legal person, that are particularly engaged to defend the
interests protected by this Code.
IV. (..)
§ 1. (..)
CAPITULO II
Collective redress for defending the homogenous and individual consumers’
interests
(..)
Article 92: The Public Prosecution whether or not filing a claim, may always act
as inspector of the law.
Article 93: Apart from the jurisdiction of the Federal Courts, the local courts have
capacity to access the case according to the following situations:
I. In the local court where the damage occurred, or should occur, if it is of local
scope.
II. In the local court of the Capital of the State or the Federal District, for damages
of national or regional scope, applying the Code of Criminal Procedure’s rules in
cases of shared jurisdiction.
CHAPTER III
Lawsuits on liability of the Supplier of goods or services
Article 101: In matters of supplier’s civil liability without prejudice of Chapters l
and ll of this title, to bring a lawsuit to the court, the following rules shall be
observed:
I. the lawsuit shall be brought in the author’s domicile;
(..)
CHAPTER IV
Res judicata
(..)
TITLE IV
The National Consumer Defence System
(..)
TITLE V
Collective Convention of Consumption
(..)
TITLE VI
Final provisions
(..)
Brazilian Tourism National Statute (Part)
The Articles referred to are solely those mentioned into this book.
Presidency of the Republic
Casa Civil Cabinet Subcommittee for Legal Affairs
Act 11.771 enacted on 17th of September 2008.
Veto message
It establishes the National Tourism Policy. It defines functions of the Federal
Government in planning, developing and encouraging the tourism industry. It
revokes the Act 6505 of 13th December, 1977, the Decree 2294 of 21st November,
1986 and provisions of Act 8.181 of 28th of March, 1991, among other measures.
THE PRESIDENT OF THE REPUBLIC
I make it known that the National Congress enacted and I sanction the following
Statute:
CHAPTER I
PRELIMINARY PROVISION
Article 1: This statute sets out rules on the National Tourism Policy, defines the
functions of the Federal Government in planning, developing and stimulating the
tourist sector, regulating the operating activities of tourist services, the
registration on the database, and the classification and supervision of tourist

service providers.
Article 2: For the purposes of this statute, tourism is accounted as the activities
undertaken by a natural person while traveling and staying in places other than
their usual environment for a period of less than 1 (one) year for leisure, business
or other purposes.
Sole Paragraph: The travel and the permanence mentioned in this article shall
generate economic turnover, labour, employment, income and public revenues,
constituting an instrument of economic and social development, promotion and
cultural diversity and preservation of biodiversity.
CHAPTER V
TOURIST SERVICES PROVIDERS
SECTION I
TOURIST SERVICES
SUBSECTION I
OPERATING ACTIVITIES
Article 21: For purposes of this statute, the following providers are considered
tourist services providers: businesses companies, single societies, individual
entrepreneurs and social services that provide tourist services in exchange for
payment and carrying out the following economic activities related to the pro-
ductive chain of tourism:
I. tourist accommodation;
II. tourism agencies;
III. tourist carriers;
IV. event organizers;
V. theme parks, and
VI. tourist camps.
Sole Paragraph: May be also registered in the Ministry of Tourism, once
complying with the relevant conditions, commercial businesses that provide the
following services:
I. The restaurants, cafes, bars and alike;
II. The centres or conventions places and / or trade fairs and exhibitions and the
like;
III. The thematic aquatic parks and enterprises equipped with entertainment and
leisure devices;
IV. marinas and businesses enterprises that support nautical tourism or
surfcasting;
V. The concert halls and equipment for tourist recreation;

VI. The organizers, promoters and providers of infrastructure services, equipment
renting and auto trade shows, exhibitions and events;
VII. The car rental for tourists; and
VIII. The providers of specialized services in the development and promotion of
various forms of tourist segments, including tourist attractions and business
planning as well as the practice of its activities.
Article 22: The Tourist services providers are obliged to register with the
Ministry of Tourism, in the manner and under conditions determined by this
statute and its regulations.
§ 1. The branches also need to be registered within the Ministry of Tourism,
except in case of kiosk services installed by the tourism agency in place designed
to hold a temporary event, the operation of which is limited to a short period
of time.
§ 2. The Ministry of Tourism will issue a certificate for each registration approved
including branches corresponding to the object of tourist activities to be
carried out.
§ 3. The tourist services providers mentioned in this article when duly registered
with the Ministry of Tourism, are entitled to provide tourism services to third
parties or intermediate the service.
§ 4. The registration will be valid for 2 (two) years from the date of issue of the
certificate.
§ 5. The foregoing shall not apply to air transport services.
SUBSECTION II
TOURIST ACCOMMODATION
Article 23: Shall be considered “tourist accommodation enterprises” or “institu-
tions”, those designed through any commercial form, that are addressed to
provide temporary accommodation services, offered in individual units and
exclusive use of the guest, as well as other services needed by users. The services
are known as tourist accommodation services provided through a contract,
whether the contract embeds express or implied contractual obligation payable
on a daily basis.
Article 24: To obtain registration, the supplier of accommodation must complete
at least one of the following requirements:
I. ownership of an official license to operate, issued by the competent authority to
provide accommodation services, and such a license shall only relate to a
specified building; and
II. the enterprises or legal entity known as condominium hotelier, flat, flat-hotel,
hotel-residence, loft, apart-hotel, apart-service condominium, condo hotel and the
like, that own a license to construct or certificate of construction concluded,

issued by the competent authority, accompanied by the following documents: (..).
SUBSECTION III
TOURISM AGENCIES
Article 27: Tourism agency is the legal person that develops the economic
activity of intermediation between suppliers and consumers of tourist services
or provides those services directly.
§ 3. The intermediation activities conducted by tourism agencies comprise the
offer, the booking and sale to consumers in one or more of the following tourist
services provided by third parties:
I. tickets;
II. tourist accommodation and other services; and
III. educational programmes and professional improvement.
(..)
VIII. sale or paid intermediation of insurance linked to trips, tours and excursions
as well as cards of traveller’s assistance;
IX. sale of books, magazines and other articles addressed to travellers; and
X. (..)
§ 4. The complementary activities of tourism agencies include the intermediation
or execution of the following services:
I. obtaining passports, visas or any other documents needed for travel
accomplishment;
II. tourist transport;
III. clearance of baggage in travel and excursions;
IV. vehicle rental;
V. acquisition or sale of tickets for public performances, artistic, sporting, cultural
and other public events;
VI. representing carriers, tourist accommodation providers and other tourist
services providers;
VII. support fairs, business exhibitions, congresses, conventions and similar
events;
VIII. selling or brokering of insurance linked with travel, tours and excursions
cards for travel assistance;
IX. selling books, magazines and other articles addressed to travellers; and
X. tourist reception, namely the organization of visits to museums, historic
monuments and other places of tourist interest.
SUBSECTION IV
TOURIST CARRIERS
Article 28: Tourist carriers are legal entities that provide services of tourist
transportation by surface. This is characterized by the transportation of people
in vehicles and boats by land, maritime and inland waterways, including the
following:
I. package travel (..),
II. local tour (..),
III. transfer,
IV. special (..).
SUBSECTION V
ORGANIZERS OF EVENTS
Article 30: Event organizers are legal entities whose scope of the By-Law is to
provide services of management, planning, organization, promotion, coordina-
tion, execution, production and event assistance.
SUBSECTION VI
THEME PARKS
Article 31: Theme parks are entrepreneurial or legal entities whose scope of the
By-Law is to provide services and activities deployed permanently in a fixed
location, thematically adapted in the environment, and deemed by the Ministry of
Tourism as of tourist interest.
SUBSECTION VII
TOURIST CAMPS
Article 32: Tourist camps are areas set up and arranged to receive tents,
car-trailers, or similar equipment, yet having facilities, features and particular
services to simplify the stay of outdoor users.
Flowcharts: Directive 2015/2302/EU

Table A1: Neither Package nor Linked Travel Arrangement
Neither Package nor Linked Travel Arrangements. The Directive 2015/2302/Eu does not apply to
the following services
Brief description Provision
Less than 24 hours covering a period of less than 24 hours unless overnight Art 2 (a)
accommodation is included;
not-for-profit basis facilitated, occasionally and on a not-for-profit basis Art 2 (b)
and only to a limited group of travellers;
general agreement purchased on the basis of a general agreement for the Art 2 (c)
arrangement of business travel between a trader and
another natural or legal person who is acting for pur-
poses relating to his trade, business, craft or profession.
stand-alone, single The purchase of a travel service on a stand-alone basis Recital (15)
contract as a single travel service
less than 25% of the TS that not accounts for a significant proportion of the Recital (18)
combination’s value value of the package or linked travel arrangement, and
not represents an essential feature of the trip or holiday.
A significant proportion is when the TS accounts for
more than 25% of the value of the combination.
residential purposes Accommodation for residential purposes, including for Recital (17)
long-term language courses
financial services Financial services such as travel insurances Recital (17)
intrinsic services services which are intrinsically part of another travel Recital (17)
service, for instance, transport of luggage
transport with over- passenger transport by road, rail, water or air, that Recital (17)
night accommodation includes overnight accommodation should not be con-
sidered as a travel service if the main component is
clearly transport.

Traveller Vulnerability in The Context of Travel and Tourism Contracts

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Traveller Vulnerability in The Context of Travel and Tourism Contracts

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Maria Goretti Sanches Lima

ISBN 978-3-319-98375-2 ISBN 978-3-319-98376-9 (eBook)

Library of Congress Control Number: 2018952464

© Springer Nature Switzerland AG 2018

protection issues, the work is interesting; it touches fundamental issues on the

Overall, the work is an extraordinary achievement on a high level, which contains

Emeritus Prof. of Private Law and European Klaus Tonner

conferences provided the opportunity to observe the environment of ‘travel and

Sao Paulo, Brazil Maria Goretti Sanches Lima

1 Introduction: Is the Traveller a Consumer? . . . . . . . . . . . . . . . . . . . 1

3.2 The Role of the Travel and Tourism Sector . . . . . . . . . . . . . . . . . 103

Annexes: Brazilian Statutes and Flowcharts of EU Package Travel

ABNT Brazilian National Standards Organization

STJ Superior Court of Justice

© Springer Nature Switzerland AG 2018 1

Therefore, the EU has sought to develop the mechanisms of cohesion to rely

‘Vulnerable consumer’ is a well-known expression, but there is no commonly

ANEC-CHILD-2011-G-111/ANEC-DFA-2011-G-071 (2011) How to protect vulnerable

2.1 Consumer Law

Consumer law in Brazil employs a clear layout of principles.1 The principle of

2.1.1 Consumer Law Evolution

© Springer Nature Switzerland AG 2018 9

Federal Unit, which so far congregates 838 administrative agencies placed on

Although the protection of competition (antitrust law) and the protection of

2.1.2 Consumer Law as a Field of Law

model of association: a mass consumption society characterised by an increasing

2.1.2.1 The Consumer Defence Code

2.1.2.1.1 Exclusion of Liability

2.1.2.1.2 The Supplier

2.1.2.1.3 Goods and Services

regulated by special laws.59 Nevertheless, this is not as simple as it may appear.

Neither traveller nor consumer traveller has a particular deﬁnition prescribed by

The concept of consumer in the CDC67 focuses particularly on the activity

There is, however, as further discussed,72 a different interpretation concerning

This signiﬁcant judgment concluded in 2006 clearly endorsed that consumer

2.1.3.1 Consumer Vulnerability

Of particular relevance in respect of consumer is the principle of vulnerability found

Vulnerability is multiform. It is an indeﬁnite and vague concept, a weakness that

entities as consumers if they prove vulnerability. In this situation, they may be a

2.1.3.2 Vulnerable Person and Hypervulnerable Person

Although the municipality has the jurisdiction to legislate on free-of-charge

Furthermore, closest to the concept of ‘hypervulnerability’ is the concept of

In fact, the principle of vulnerability is abstract. The vulnerability of the con-

2.1.3.3 Consumer’s Rights, Traveller’s Rights

individual, collective or diffused, as well as ensuring judicial, administrative and

In addition, documents, declarations, reports, pre-contractual information,

Table 2.1 Legislation

Table 2.1 (continued)

2.2 The Role of the Travel and Tourism Sector

up in 2016, driving an increase in global growth to 3.8%, mostly reﬂecting some

Fig. 2.2 World economic Region 2017

Fig. 2.3 Projection: World Region 2018

light of the CNAE. Such a classiﬁcation is used by the government, particularly in

Fig. 2.4 International 2010 5.809.505

Table 2.2 Travel and tourism agencies

Compared to 2009, in 2010 Foz do Iguaçu and Florianópolis received more

Ranking 2010 Nº 2011 Nº 2012 Nº 2014 Nº

Fig. 2.5 Ranking ICCA 2010–2014/Number of international events. Source: ICCA

2.3 Tourism Law

2.3.1 The Tourism National Statute

2.3.1.1 Legal Deﬁnitions

The Tourism National Statute deﬁnes ‘tourism’ as follows:

2.3.2 Decree 7.381/10