Análisis de la reciente jurisprudencia del TS, declarando la responsabilidad

DESCRIPTION

Villa Edera Hotel is a brand new 3 star hotel located in the heart of Lido di Venezia. All rooms are furnished in Venetian style with its bright colors evokes the atmosphere and the warmth of the eighteenth century Venice and enhanced by Murano glass chandeliers.

The rooms are equipped with air conditioning, heating, telephone, minibar, safe, satellite TV, hairdryer, wireless and terrace (on request). The water-bus terminal to Venice is a few minutes walk from the hotel.

HOW TO GET TO VENICEMARATHON EXPO (race number pick-up point)

Water-bus lines 5.2 and 6 take to Piazzale Roma bus terminal in 35 minutes. Frequent bus service from Piazzale Roma take to San Giuliano Park in 10 minutes, the VeniceMarathon Exposport grounds.

REACHING VENICE LIDO FROM VENICE TRAIN STATION OR PIAZZALE ROMA CAR/BUS TERMINAL

By water-bus: lines 5.1 and 5.2 link Venice Lido to Piazzale Roma and Venice train station in 35 minutes, service runs all days. From Piazzale Roma line 6 also goes to Lido (only workdays). Line 1 goes from Piazzale Roma and train station to Lido on a longer route through the Grand Canal: 1 hour.

EASY PACKAGE (prices in Euro, per room)

Single room Double room Triple room

1 night 122,00 145,00 188,00

2 nights 235,00 270,00 357,00

each extra night 113,00 125,00 169,00

Supplement: runners transfer by speedboat from Lido to Piazzale Roma (in connection with our bus to the Start) on Sunday morning: € 21,00

SPECIAL CONDITIONS OFFERED BY THIS HOTEL

FAMILY POLICY: child sharing with 2 adults in extra bed: under age 2 free of charge. Baby-bed on request € 19.

Extra bed from age 2 to 5 with € 12 discount on the triple room price; from age 6 to 10 with € 16 discount on the triple room price.

Late check-out on Sunday 28th: after 11:00 am until 7:00 pm with € 80 supplement. The hotel will provide 1

common room to freshen up and change after the race.

THE PACKAGE INCLUDES

VeniceMarathon Easy Package includes: accommodation with breakfast, early breakfast on the race morning, runners private transfer with assistant by motorboat + bus from Lido (transportation terminal) to the race start in Stra, reserved seat at the Finish-line stands for the non-running guests.

EXCLUSIVE PACKAGE: this Venice-Marathon package with all the services listed above can be booked only through Oltrex 4M – VeniceMarathon Official Agent.

Performer: OLTREX 4M S.p.A. – Santa Croce 466/E – 30123 Venezia.

Authorization: Province of Venice n°37794. Oltrex 4M S.p.A. has established, according to Article 99 of the Consumer Code (Legislative Decree n° 206/2005), a policy for Civil Professional Responsibility with Vittoria Assicurazioni S.p.A.: policy numbers 902273 and 902274. Civil Professional Responsibility, maximum Euro 5.000.000,00.

DURATION OF THE PACKAGE

The tourist package is valid from October 20th to November 1st 2012.

PAYMENTS

At the moment of the confirmation of the booking, a request is made for a payment of 25% of the total. The remainder is required within 30 days prior the arrival date, or simultaneously with the booking if this is done within 30 days prior arrival date. A fee of 1.5% on the package price will be applied if payment is made by credit card.

CANCELLATIONS

When the traveller withdraws from the contract in any case other than Art. 9 of General Terms and Conditions, the following Conditions will apply:

No penalty is applicable on cancellations made until 40 days prior to arrival; booking fees and credit card transaction fees (when payment has been done by credit card) will not be refunded.

– From 39 to 30 days prior to date of arrival – 25% penalty – From 29 to 15 days prior to date of arrival – 50% penalty

– Cancellations received within the 14 days before the date of arrival: full penalty charge.

Cancellation due to runner's injury. Special condition provided by our VeniceMarathon Premium and Easy Packages: in

case an injury stops the client from running the Marathon, the client may cancel his/her reservation without cancellation penalties by sending his/her doctor's certificate to Oltrex 4M booking office. This special condition applies to the cancellation of runner's room only.

BOOKING MODIFICATIONS

Each modification of a booked package requested by the Client will imply an extra charge of Euro 20,00 as booking fee. The reduction of the number of persons is considered to be a cancellation, and is thus subject to the penalties indicated in the above paragraph entitled Cancellations.

GENERAL TERMS & CONDITIONS ON THE SALES OF TOURIST PACKAGES 1.LEGISLATIVE SOURCES

The sale of tour packages, which has as its aim the provision of services both in Italy and abroad, is regulated by L.27/12/1977 n° 1084, ratified and brought into effect by the International Convention relative to the travel contract (CCV) signed in Brussels on 23.4.1970 as well as by the Consumer Code, Legislative Decree n°206 of 6 September 2005 (Articles 82 – 100) and their successive modifications.

2.AUTHORIZATIONS

The organizer and the seller of the tour package, to whom the consumer will have recourse, must be authorized to undertake the respective activities based upon applicable administrative norms.

3.DEFINITIONS

For the purposes of the present contract, the following definitions apply:

a) the travel organizer is the subject who coordinates the elements indicated in article 4 (below) and obligates himself in his own name and under pain of forfeit to procure tour packages for third parties;

b) the seller is the subject who sells or who takes upon himself the commitment of procuring tour packages according to article 4 (below) concerning forfeit;

c) the consumer of tour packages is the person who acquires or receives a tour package, or any person who may be nominated for the purpose of satisfying all requested conditions for the use of the service, by which the main signer of the contract takes upon himself the commitment to acquire, without remuneration, a tour package.

Consumer Code, which is also the document for acceding eventually to the Guarantee Fund indicated by Article 20 of these General Contract Conditions.

5.OBLIGATORY INFORMATION – TECHNICAL DETAILS FORM

The organizer is obliged to create in the catalogue or in a program outside the catalogue a Technical Details Form. The obligatory elements which must be inserted into the Technical Details Form of the catalogue or of the program outside the catalogue are:

- terms of administrative authorization or, if applicable, the commencement notice of the organizer; - terms of the insurance policy of civil responsibility;

- period of validity of the catalogue or program outside the catalogue;

- mode and conditions of substitution of the traveller (Article 89 of the Consumer Code); - parameters and criteria of adjustment of travel costs (Article 90 of the Consumer Code).

The organizer will also inform the travellers as to the identity of the effective vector(s) in the space of time and with the modality indicated by Article 11 of the European Community Regulations 2111/2005.

6.BOOKING

Requests for booking must be written on a proper contract form, electronic if necessary, completely compiled and signed by the costumer, who will receive a copy of it. Acceptance of booking will be considered to be complete, with the consequent signing of the contract, only in the moment in which the organizer sends the relative confirmation (telematically, if necessary) to the customer via the travel agency which effected the sale.

The indications relative to the tour package which are not contained in the contract documents, in the brochures or in other means of written communication, will be furnished by the organizer in complete fulfilment of the obligations at his own expense which are indicated in Article 87, paragraph 2 of the Consumer Code, before initiating the trip.

7.PRICE

The price of the tour package is determined in the contract, with reference to that indicated in the catalogue or program outside the catalogue and to eventual updating of said catalogues or programs which may occur successively. This may be done up to 20 days before the departure date, and only in consequence of variations of:

- transportation costs, including the cost of fuel;

- rights and taxes on certain types of tour services such as duties, or taxes for arriving in sea ports or airports;

- rate of exchange applied to the package in question.

For such variations, reference will be made to the course of changes and cost of the above which are valid at the date of publication of the program, as appears in the Technical Details Form of the catalogue, that is, on the date indicated in any eventual updating, as mentioned above. The variations will affect the forfeit price of the tour package in the percentage expressively indicated in the Technical Details Form of the catalogue or program outside the catalogue.

8.MODIFICATION OR ANNULMENT OF THE TOUR PACKAGE BEFORE DEPARTURE

Before departure, the organizer or the seller who needs to modify significantly one or more elements of the contract, must immediately advise the consumer by writing, indicating the type of modification and the consequent variation of the price. In case of rejection of the proposed modification indicated in paragraph 1, the consumer may ultimately exercise the right of refund of the sum already paid, or he may take advantage of the offer of a substitute tour package as indicated in paragraphs 2 and 3 of Article 10.

The consumer may exercise the right indicated above also when the annulment is due to the lack of the minimum number of participants indicated in the catalogue and in the program outside the catalogue, or in cases of force majeure or fortuitous cases relating to the acquired tour package.

For annulments which are different from those caused by force majeure, fortuitous cases or lack of the minimum number of participants, as well as for those which are not due to the consumer’s rejection of the alternate tour package offered, if the organizer annuls he will refund to the consumer twice the amount which was paid and which was cashed by the organizer via the travel agent.

The sum to be refunded will never be greater than twice the amount which the consumer is deemed to owe according to Article 10, paragraph 4, in case that he decides to annul.

9.CONSUMER RESCISSION

The consumer may withdraw from the contract without payment of penalties in the following hypotheses: - increase in price over 10%, according to Article 8 (above);

- significant modification of one or more elements of the contract which objectively figure as fundamental to the fruition of the tour package considered as a whole, and proposed by the organizer after the formalization of the contract but before departure and not accepted by the consumer.

In the cases indicated above, the consumer will also have the right:

- to make use of an alternative tour package, without price supplement and with the restitution of the overcharge, whenever the second tour package has a value inferior to the first;

- to have a refund only of the partial amount already paid. The refund must be effected within seven working days from receiving the request for a refund.

The consumer will have to submit his decision (to accept the modification or to recede) within and no longer than two working days from the moment in which he has been given notice of the rise or variation in price. In case of the lack of explicit communication within the above-mentioned period of time, the proposal formulated by the organizer will be considered to be accepted.

In case that, after departure, the organizer cannot supply, for any reason (apart from circumstances depending on the customer) an essential part of the services included in the contract, alternative solutions will have to be provided to the consumer without extra charges. If the value of the supplied services is lower than the value of the foreseen ones, the value of the difference must be refunded. In case no alternative solution is possible, or the solution offered by the organizer has been refused by the customer for valid and justified reasons, the organizer will provide without extra charge a means of transport equivalent to the original one which was to have been used for returning to the initial departure point, or to another possibly pre-established place, compatible with availability. The customer will be refunded in accordance with the difference between the cost of the estimated services and the cost of the services granted up to the moment of anticipated return.

11. SUBSTITUTIONS

The consumer who renounces may be substituted by another person if:

a) the organizer is advised in writing at least 4 working days before the date established for the departure, contextually receiving communication about the reason for the substitution and the personal data of the substitute;

b) the substitute satisfies all the conditions for the fruition of the service (ex Article 89 Consumer Code) and in particular the requisites relative to passport, visa, and health certificate;

c) the services themselves or substitute services can be provided following the substitution;

d) the substitute reimburses the organizer all additional expenditures sustained for proceeding with the substitution, in the measure which will be determined before the cession.

The person who cedes and the substitute are together responsible for the payment of the remainder of the price as well as expenditures mentioned in letter d) of this Article 11.

The ulterior modalities and conditions of substitution are indicated in the Technical Details Form.

12. CONSUMER OBLIGATIONS

During the negotiation and anyway before the formalization of the contract, Italian citizens will be provided by writing with information of general character brought up to date to the time of the publication of the catalogue relating to health obligations and to the documents necessary for expatriation. Foreign citizens will obtain the corresponding information through the diplomatic representatives present in Italy and/or the respective official government information channels. In any case, consumers must, before departure, verify the updating before the competent authorities (for Italian citizens the local Questor’s Offices, the Ministry of Foreign Affairs, website www.viaggiaresicuri.it, or the Centrale Operativa Telefonica, telephone number 06 491115), informing themselves about legalities before the trip. In the absence of said verification, no responsibility for the failure to depart of one or more of the consumers can be imputed to the seller or the organizer.

The consumers must inform the seller and organizer as to their own citizenship, and at the moment of departure, must definitively prove to possess vaccination certificates, individual passports and all other valid documents for travelling to all the countries on the itinerary. They must also possess all visas, transit permits and health certificates that may be requested. Consumers must also observe the rules of prudence and diligence which are in force in the countries of destination. They must study the information provided to them by the organizer, as well as administrative or legislative rules relating to the tour package. Consumers will be summoned to respond to all damages suffered by the organizer and/or the seller, even when due to a lack of respect for the obligations indicated above.

The consumer must provide the organizer with all documents, information and elements in his possession which may be useful for the exercise of the organizer’s right of substitution towards third parties responsible for the damage. The customer is held responsible by the organizer for any detriment to the substitution right. At the moment of booking, the customer will also communicate, in writing, to the organizer the personal details requested which may be the objects of specific agreements as to travel, provided the accomplishment of these is possible.

The consumer must always inform the seller and the organizer as to his eventual needs or special conditions (pregnancy, food intolerance, disability, etc.), and must specifically indicate his request for personalized services.

13. HOTEL CLASSIFICATION

The official classification of hotel structures is given in the catalogue or in other informative material, exclusively based on the explicit and formal indications of the competent authorities of the country in which the service is supplied. In absence of official classifications recognized by the competent Public Authorities of the countries (including members of the European Union), the organizer reserves the right to provide, in the catalogue or in the form of a brochure, his own description of the hotel structure, in order to facilitate the consumer’s evaluation and consequent acceptance of the same.

14. ORGANIZER RESPONSIBILITY

The Organizer is responsible for damages caused to the customer due to the total or partial default of the services described in the contract, whether these be performed by himself personally or by third-party suppliers, unless he can prove that the event depended on the consumer (including initiatives taken by said consumer independently, during the execution of tourist services), or on events not linked to the supply of the services described in the contract, fortuitous events, act of God (force majeure), or by circumstances that the organizer himself could not reasonably have foreseen or resolved through his own professional diligence.

The seller who procures the tour package is by no means liable for any obligations arising from the organization of the tour package. The seller is held nonetheless accountable for the fulfilment of any obligations arising from its intermediary activity within the terms of existing law.

Every unsuccessful execution of the contract must be immediately communicated by the customer. In this way, the organizer, his local representative or agent can immediately find a remedy for it. Should such communication not be made, the unsuccessful execution of the contract cannot be contested. The consumer can make a complaint by sending a registered letter, with receipt note, to the organizer, within 10 working days from the date of the return to the place of departure. 17.1 TRAVEL INSURANCE

In case an insurance policy is not explicitly included in the price, it is possible before departure, and even recommended, at the moment of booking in the organizer’s or seller’s office, to take out special insurance policies covering expenses deriving from the cancellation of the tourist package, accidents and lost luggage. It is also possible to stipulate an assistance contract covering repatriation costs in case of accidents and illnesses.

18. GUARANTEE FUND

In case of insolvency or bankruptcy of the seller or organizer, the customer can turn to the “National Guarantee Fund ” (Article 100 of the Consumers’ Code), instituted for consumers in possession of contracts, in accordance with Presidential Decree n.349 of 23 July 1999, for the achievement of the following needs:

a) refund of the price paid;

b) repatriation, in case of journeys to foreign countries.

The fund must also provide immediate economic availability in case of the obligatory return of tourists from non-European Community countries, in case of emergencies which may or may not be imputable to the organizer.

19. JURISDICTION

The Forum of Venice will be the only competent forum for any controversy.

ADDENDUM

Single tourist service general contract sales conditions a) Regulations

Contracts concerning transportation and accommodation only, or any other separate tourist service, since they cannot be