Toelichting bij COM(2017)60 - UNWTO Convention on the protection of tourists and the rights and obligations of tourism service providers - Hoofdinhoud
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| dossier | COM(2017)60 - UNWTO Convention on the protection of tourists and the rights and obligations of tourism service providers. |
|---|---|
| bron | COM(2017)60   |
| datum | 07-03-2017 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
The World Tourism Organisation (UNWTO) is a specialised agency of the United Nations responsible for matters related to tourism and has established a working group aiming to draw up an international instrument on the protection of tourists and the rights and obligations of tourism service providers. That working group is composed of representatives of different UNWTO Member States, as well as private sector and international organisations. Following exploratory discussions at several working group meetings, a draft "Convention on the Protection of Tourists and the Rights and Obligations of Tourism Service Providers1 has been prepared. The Convention will be open for signature or accession also by the EU. 19 EU-Member States are currently also Members of the UNWTO.
Following the adoption of Directive (EU) 2015/23022 on package travel and linked travel arrangements discussions within the UNWTO-Working Group have started again and the draft Convention may be submitted to the General Assembly of the UNWTO in September 2017.
The draft Convention consists of the Convention proper, containing a number of general provisions, and three annexes. Annex I concerns assistance obligations for host countries to tourists from other countries in emergency situations. Annex II covers package travel issues similar to those covered by the new EU Package Travel Directive (2015/2302). Annex III relates to accommodation services offered to tourists. When signing or acceding to the Convention, each party has to accept at least one of the three annexes. The annexes contain two categories of rules: standards, which are mandatory and must be reflected in the national law of the parties, and recommended practices, which are mere recommendations and not legally binding.
• Consistency with existing policy provisions in the policy area
Annex I lays down obligations for State Parties to provide assistance and information and to cooperate in emergency situations such as natural disasters or man-made disasters. Assistance to be provided to tourists covers core aspects such as shelter, accommodation, food and transportation. European cooperation in the field of civil protection is based on Decision No 1313/2013/EU3 on a Union Civil Protection Mechanism. That Decision provides for measures and actions at EU level for emergency response to disasters inside and outside the Union. In addition, Annex I is linked, to some extent, to rules on consular protection and visa requirements.
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- Annex II on package travel issues covers an area extensively regulated by Union law, and the current draft is largely inspired by the new EU Package Travel Directive (2015/2302) which
- Union Civil Protection Mechanism, OJ L 347, 20.12.2013, p. 924
- Council Directive of 13 June 1990 on package travel, package holidays and package tours, OJ L 158 of 23.6.1990, p. 59
- Not applicable
- Not applicable
- Not applicable
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- Through a Working Group the Word Tourism Organization (UNWTO) is preparing an international convention on the protection of tourists and the rights and obligations of tourism
- 23.6.1990, p. 59
- This document was downgraded / declassified
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- 3. Annex I
- 4. Annex II
- 5. Annex III
Annex II on package travel issues covers an area extensively regulated by Union law, and the current draft is largely inspired by the new EU Package Travel Directive (2015/2302) which
This is the title of the draft Convention in the text sent to all UNWTO-Member States in August 2016. It may still change in the course of the negotiations.
2 Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on
package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC, OJ L 326 of 11.12.2015, p. 1
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was adopted on 25 November 2015. The Member States have to transpose it by 1 January 2018 and the national rules transposing the Directive will be applicable from 1 July 2018. It aims to extend the scope of Directive 90/314/EEC4 to cover also different forms of online combinations of travel services. The discussions of the UNWTO-Working Group were suspended during the legislative negotiations on the new Directive and the latest draft of the UNWTO-Convention contains many of the new aspects introduced by Directive 2015/2302. Indeed the UNWTO is committed to ensuring that Annex II is compatible with Directive (EU) 2015/2302.
Annex III sets out obligations and recommended practices for accommodation service providers, such as hotels and providers of holiday flats. Significant aspects are covered by Directive 2011/83/EU5 on consumer rights, particularly in relation to information that has to be provided before the conclusion of the contract and that becomes part of the contract. There is also a link to Directive 2005/29/EC concerning unfair business-to-consumer commercial practices.
• Consistency with other Union policies
Annexes II and HI are directly linked to EU legislation in the field of consumer protection policy. In addition, the draft Convention concerns EU policies in the field of tourism, transport, visa and civil protection cooperation and emergency response.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
Article 218 lays down the procedure in relation to the conclusion of international agreements. The Union has competences over all matters covered by the draft Convention. Directives (EU) 2015/2302 and 2011/83 have been adopted on the basis of Article 114 TFEU. Moreover, according to Article 207 (1) TFEU, the Union has competence to conclude agreements relating to trade in services, and the rules contained in Annex II and III would have an impact on the competitive position of EU service providers as compared to service providers from third countries6. Even if the conclusion of the future Convention were to be based on Article 114 TFEU, according to Article 3 (2) TFEU, the Union still has exclusive competence for the conclusion of an international agreement when its conclusion may affect common rules or alter their scope.
Article 214 (1) and i TFEU explicitly enables the Union to conclude with third countries and competent international organisations agreements on humanitarian aid for the protection for people in third countries who are victims of natural or man-made disasters. Article 196 TFEU gives the Union the power to support, complement and coordinate Member States' actions in disaster prevention, preparedness and response and to promote consistency in
Council Directive of 13 June 1990 on package travel, package holidays and package tours, OJ L 158 of 23.6.1990, p. 59
5 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 201 Ion consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, p. 64 _________________________________
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international civil-protection work. To fulfil these tasks, the Union has established a Union Civil Protection Mechanism. However, Union competences based on Articles 196 and 214 TFEU are not exclusive. Article 4 i TFEU specifies that a common Union policy in humanitarian aid shall not prevent Member States from exercising their competences in this field and, according to Article 196 TFEU, Union action regarding civil protection is merely of a supportive and complementary nature. Therefore, Member States are not prevented from participating in the negotiations on Annex I even if the Union exercises its competences.
• Subsidiarity (for non-exclusive competence)
Since detailed internal EU legislation exists for Annex II and, to a large extent, for Annex III, the EU has, according to Article 3 (2) TFEU, exclusive competence to negotiate large parts of the Convention. Parts of the draft Convention, in particular Annexes II and III may also be covered by Article 207 TFEU, an exclusive competence pursuant to Article 3 (1) TFEU, Therefore, the principle of subsidiarity does not apply.
Annex I of the Convention aims at strengthening cooperation and facilitating coordination of assistance between host countries and countries of origin of tourists during emergencies. This can be achieved more efficiently at Union level by reason of complementarity with the existing arrangements under the Union Civil Protection Mechanisms. Union action in relation to Annex I would not preclude Member States from exercising their competences in the field of humanitarian aid and civil protection.
• Proportionality
Agreement on international rules in multilateral negotiations on the matters covered by Annexes I, II and III is the only way to achieve common international standards for the protection of tourists in relation to package travel and accommodation matters as well as on the assistance given to tourists in emergency situations. Furthermore, the Union has already laid down detailed provisions in the areas covered by Annexes II and III, in particular in Directives (EU) 2011/83 and 2015/2302. The Union's participation in the multilateral negotiations is the only possibility for the Union to influence the content of the planned Convention and ensure that adequate international minimum standards and recommended practices are established which are compatible with existing Union legislation.
• Choice of the instrument
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation Not applicable
• Stakeholder consultations
Stakeholders were consulted at different stages of the adoption of Directive (EU) 2015/2302, the content of which is largely reflected in the current wording of Annex II. The same is true for the adoption of Directive (EU) 2011/83, several provisiony^of which aro^ reflected jn Annex III. Furthermore, different stakeholders organised in
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associations are members of the UNWTO-Working Party which is working on the draft convention. First discussions on the draft Convention and the involvement of the EU took place at workshops on the transposition of Directive (EU) 2015/2302 with experts from the Member States on 13 June 2016 and 25 October 2016.
• Collection and use of expertise
The necessary expertise has been collected in relation to impact assessments of corresponding legal acts of the Union, in particular Directives (EU) 2011/83 and 2015/2302, and the stakeholder consultations referred to above.
• Impact assessment
This proposal is not supported by a specific impact assessment, for the following reasons:
Because of exclusive Union competence for a large part of the draft Convention, only the Union can negotiate Annexes II and III. Therefore, if the EU wants to influence evolving international standards in areas covered by detailed Union legislation, the Commission has virtually no discretion as to whether it should propose a Council decision authorising the opening of negotiations. Furthermore, Member States would not acquire competence to negotiate the relevant parts of the draft Convention if the Commission did not make this recommendation.
The impacts of the draft rules corresponding to existing Union legislation, in particular Directives (EU) 2011/83 and 2015/2302, had been assessed before the relevant Commission proposals were adopted.
Regarding specifically package travel matters, the content of Annex II should be as close as possible to Directive (EU) 2015/2302 without going beyond it. Similar considerations apply to Annex III and Directive 2011/83/EU. Since the current drafts of Annexes II and III essentially mirror EU rules, no significant costs on operators can be expected.
Positive impacts in terms of increased competitiveness for EU operators and better protection of EU travellers purchasing packages or accommodation services in third countries could be expected if it can be achieved that a sufficiently high number of comparable minimum standards apply also in a significant number of third countries.
Should, contrary to those expectations, the signature and ratification of the Convention create any substantial additional impacts, due to the outcome of the negotiations, those could be assessed at the stage of the signature or ratification.
• Regulatory fitness and simplification
• Fundamental rights
Fundamental rights aspects were considered before relevant EU legislation, in particular Directives (EU) 2011/83 and 2015/2302, was adopted. In general, it can be expected that through the negotiations and in particular the prospect of third countries accepting at least certain minimum standards applicable within the EU, consumer protection as referred to in Article 38 of the Charter of Fundamental Rights will be strengthened.
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4. BUDGETARY IMPLICATIONS
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements Not applicable
• Explanatory documents (for directives) Not applicable
• Detailed explanation of the specific provisions of the proposal
The Recommendation for a Council Decision contains the standard provisions used in such decisions and the draft negotiation directives in the Annex set out the general line which the Commission has to take in the negotiations.
The draft Convention which was circulated by the Secretary-General of the UNWTO to all Member States of the UNWTO in August 2016 consists of the Convention proper and three annexes.
The text of the Convention proper contains provisions on the scope (Article 1), general principles (Article 2), definitions (Article 3), inter alia of the terms 'tourist, 'tourism service", 'tourism service provider', as well as 'standards' (mandatory minimum requirements for 'States Parties') and 'recommended practices' (measures the application of which is desirable). Article 4 refers to the three annexes. Article 5 on the scope of the obligations of the 'State Parties' provides that, when ratifying, approving or acceding to the Convention, a State Party has to accept at the minimum one Annex.
Article 6 states that State Parties are obliged to implement standards in accordance with their national laws and practices, whereas Article 7 provides for a simplified procedure for the adoption of additional or the amendments of existing standards. Article 8 contains clarifications regarding the relationship with other international agreements. Article 9 states that reports of the Secretary-General to the General Assembly of the UNWTO have to be communicated also to parties who are not Member States of the UNWTO. Article 10 specifies that inter alia all Member States of the United Nations may sign the Convention. Article 11 contains provisions on ratification, acceptance, approval or accession.
Article 12 on 'regional economic integration organisations' corresponds to provisions found in other international agreements. It provides that such organisations may sign, ratify, accept, approve or accede to the Convention, having in that case the rights and obligations of a State Party to the extent that they have competence over matters governed by the Convention. Article 12 ensures that the Union may sign and ratify the Convention.
According to Article 13, the Convention shall enter into force following the deposit of the twentieth instrument of ratification, acceptance, approval or accession. Article 14 regulates amendment of the Convention. Articles 15, 16 and 17 regulate denunciation of the Convention by a State Party, dispute settlement between State Parties and the authentic texts and their deposit with the Secretary-General of the UNWTO.
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Annex I concerns assistance obligations of host States to tourists from other States in emergency situations. Chapter 1 defines the term 'emergency situations'. The draft standards inter alia set out the type of assistance to be provided to tourists, cooperation duties between the tourist's country of origin and the host country, including the provision of information on the affected tourists and in relation to medical and technical staff. The draft recommended practices cover issues such as the setting up of crisis management centres, contingency plans and assistance services at transport terminals.
Annex II covers package travel issues, largely mirroring many provisions of the new EU Package Travel Directive (2015/2302) in the form of standards or recommended practices, including many details and to a large extent using the same terminology.
Chapter 1 contains the definitions of the terms used in the Convention, including of the terms 'package' and linked travel arrangement". Chapter 1 also provides that business travel purchased on the basis of a general agreement and packages and linked travel arrangements offered occasionally on a not-for-profit basis and only to a limited group of tourists are excluded from its scope.
Chapter 2 concerns pre-contractual information obligations. Chapter 3 covers the binding character of pre-contractual information and the conclusion of the package travel contract in the form of recommended practices. Chapter 4 contains rules on the content of a package travel contract.
Chapter 5 encompasses recommended practices regarding the transfer of the package travel contract to another tourist. In Chapter 6, the provisions on price changes largely correspond to the Directive, leaving, however, the maximum percentage of a permissible price increase to the discretion of each State Party. Chapter 7 contains standards on the alteration of other package travel contract terms.
Chapter 8 reflects the provisions of the Directive on the termination of the package travel contract before the start of the package in the form of recommended practices, without always going to the same level of detail.
Chapter 9 lays down detailed rules on the organiser's liability for failure of performance or improper performance, giving States Parties the possibility to make retailers liable as well.
Chapter 10 contains mainly recommended practices in relation to assistance obligations in case of unavoidable and extraordinary circumstances.
Chapter 11 regulates protection against the insolvency of the organiser. It does not provide for mutual recognition, but recommends the designation of central contact points.
In Chapter 12 there are recommended practices on insolvency protection and information requirements for linked travel arrangements.
Annex HI relates to accommodation services offered to tourists. Chapter 1 contains definitions, inter alia of the terms 'accommodation service', 'accommodation service provider' and 'unavoidable and extraordinary circumstances', (jjhaptere 2 and 3 cover pre contractual and contractual information obligations. Chapter '''"" " J-J*-'-
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accommodation service providers. Chapter 5 contains recommended practices on assistance obligations for accommodation service providers in case of unavoidable and extraordinary circumstances, covering also fair and ethical behaviour by such providers.
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COUNCIL DECISION
authorising the opening of negotiations on a UNWTO-Convention on the protection of tourists and the rights and obligations of tourism service providers
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular 218 (3) and i thereof,
Having regard to the recommendation from the European Commission,
Whereas:
The European Union has adopted detailed legislation in the field of package travel and linked travel arrangements. On 25 November 2015 the European Parliament and the Council adopted Directive (EU) 2015/23027 on package travel and linked travel arrangements, replacing Council Directive 90/314/EEC8 of 13 June 1990 on package travel, package holidays and package tours. Directive (EU) 2015/2302 fully harmonises the national rules on package travel and linked travel arrangements.
Directive 2011/83/EU9 on consumer rights includes provisions on pre-contractual information requirements in relation to distance, off-premises and other contracts concluded between traders and consumers, including contracts on accommodation services. The rules on distance and off-premises contracts are fully harmonised and also contain provisions on the content of such contracts.
Through the Union Civil Protection Mechanism established by Decision No 1313/2013/EU10 the Union shall support, complement and facilitate coordination of Member States' action in the filed of disaster prevention, preparedness and response and promote consistency in international civil protection work. The Mechanism may also be used to provide civil protection support to consular assistance to the citizens of the Union in disasters in third countries, if requested by the consular authorities of the Member States concerned.
Through a Working Group the Word Tourism Organization (UNWTO) is preparing an international convention on the protection of tourists and the rights and obligations of tourism
Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC, OJ L 326 of 11.12.2015, p. 1
8 Council Directive of 13 June 1990 on package travel, package holidays and package tours, OJ L 158 of
Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, p. 64
Decision No 1313/2013/EU of the European Parliament and of the Qm§$ó&&3n\Ü&8êHt1gty&$Wè<M8S\teci Union Civil Protection Mechanisms, OJ L 347, 20.12.2013, p. 924
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service providers. Following the adoption of Directive (EU) 2015/2302, discussions within the Working Group have started again and the Convention may be submitted to the General Assembly of the UNWTO in September 2017.
When signing or acceding to the Convention, each party has to accept at least one of the three annexes to the Convention. Annex I concerns assistance obligations of host States to tourists from other States in emergency situations, Annex II covers package travel issues similar to those covered by Directive (EU) 2015/2302 and Annex III relates to accommodation services offered to tourists, including information requirements as regulated in Directive 2011/83/EU. The annexes will contain standards, which are mandatory minimum requirements, and recommended practices, which are not legally binding.
Through participating in the negotiations the Union can, in the interest of Union citizens and travel businesses established in the Union, influence the development of international minimum standards and recommended practices regarding package travel issues and accommodation services which are inspired by Union legislation, and can contribute to the establishment of international minimium standards and recommendations on assistance to tourists in emergency situations. At the same time the Union can avoid that international standards are created that are incompatible with Union legislation, in particular Directives (EU) 2015/2302 and 2011/83, and other policies of the Union.
Given its competence and its interests in the fields covered by the Convention, the European Union should participate in the negotiations on the UNWTO-Convention, including its three annexes.
HAS ADOPTED THIS DECISION:
Article 1
The Commission is hereby authorised to negotiate, on behalf of the Union, a UNWTO Convention on the protection of tourists and the rights and obligations of tourism service providers, including its three annexes.
Article 2 The negotiating directives are set out in the Annex.
Article 3
The negotiations shall be conducted in consultation with [name of the special committee to be inserted by the Council].
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Article 4 This Decision is addressed to the Commission.
Done at Brussels,
For the Council The President
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ANNEX
Directives for the negotiation of a UNWTO-Convention on the protection of tourists and the rights and obligations of tourism service providers
to the
Council Decision
authorising the opening of negotiations on a UNWTO-Convention on the protection of tourists and the rights and obligations of tourism service providers
1. General principles
The Commission should conduct the negotiations on the UNWTO Convention on behalf of the Union, including all three annexes. The Commission has to ensure that the Convention1 sets out international minimum standards which are compatible with existing Union legislation, in particular Directives (EU) 2015/2302 and 2011/83. Those standards should be as close as possible to Union legislation and not go beyond it, while at the same time allowing the Union to maintain or introduce higher protection standards. Recommended practices, which are not legally binding, should be as close as possible to Union law and be compatible with its principles.
Regarding the question of how many details stemming from EU legislation, in particular Directives (EU) 2015/2302 and 2011/83, should be reflected in binding minimum standards and recommended practices, a balance will have to be sought between the objective of achieving an adequate minimum set of international standards and the objective of ensuring that a sufficient number of non-EU Member States will sign and ratify the Convention. The Commission will also ensure the compatibility of the standards and recommended practices with the Union's GATS commitments in tourism and related sectors.
The terminology should be as close as possible to the one used in Union law. However, in light of certain standard terminology used in an international context, in particular within the UNWTO, some flexibility may be required while making sure that the content of the relevant concepts is compatible with Union law.
2. Accession clause
The Convention should contain a clause permitting the signature, ratification or accession of regional economic integration organisations such as the European Union.
Annex I should ensure a good level of assistance given to tourists affected by an emergency situation such as a natural disaster while being in a host country that has ratified Annex I and should establish procedures that are as effective as possible while being compatible with principles laid down in the law of the Union and its Member States. At the same time, account will have to be taken of the kind and level of assistance that many States affected by emergency situations are reasonably able to provide to tourists.
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Following the adoption of Directive (EU) 2015/2302, the discussions in the UNWTO-Working Group have been based on that Directive. The Commission should ensure that Annex II is indeed compatible with Directive (EU) 2015/2302 and reflects its content as much as possible. At the same time, the Union may have to show some flexibility regarding the level of regulation that other interested parties are willing to accept, in particular in terms of legally binding standards, so as to ensure that a sufficiently high number of third countries will accept Annex II.
Annex III should be fully compatible with Union law, in particular Directive (EU) 2011/83, and ensure a good level of protection of tourists in relation to accommodation services, taking into account the legitimate interests of the relevant travel businesses.
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