Amendments Nos. 2, 3 and 4 can be discussed together.
SECTION 2.
I move amendment No. 2:
In page 4, subsection (1), line 31, before "person" to insert "natural",
I am informed that in other EU Directives the Commission's communications specifically confine definitions of "consumers" to "natural persons". There might be a reason for the Minister not doing so in this Bill or it might be an oversight. I wish to hear the Minister's reason for thinking that the word "persons" is adequate to refer to consumers when in other EU legislation the words "natural person" have been considered the appropriate and most correct term in order to confine it to people who are availing of the services provided by travel companies.
I encourage the Minister to accept these amendments. They seek to change the word "person" to "natural person". The word "person" in legislation can mean a company or a firm or a partnership. The EU Council Directive of 13 June appears to indicate that the term "natural person" was meant when the directive was being discussed. The preamble to the directive mentions the consumer in a way that suggests it is not referring to companies but to individuals. The Minister should give serious thought to clarifying this matter.
Another EU Directive on unfair contract terms specifically discusses consumers as "natural persons". There is also a draft directive on distance selling which refers to consumers as "natural persons". The phraseology in EU legislation describes a person as a "natural person" because successive law cases and other legislation have interpreted "person" as meaning companies. I take it the Minister does not wish to do that.
These amendments propose that the definition of consumer should be limited to natural persons. This interpretation would be too restrictive as it would exclude corporate bodies. The definition of "consumer" in the Bill is the same as that used in the directive. We have no flexibility to change the definition. Corporate package travel is big business and the people who use that sector, or are involved in it, are entitled to the same protection the Bill gives to other individuals. They are, collectively, individuals. We would remove a big wedge of the trade if we excluded the corporate sector.
Will the Minister explain why the EU Directive on unfair contract terms — Directive 93/15 of 5 April 1993, which has its origins in the same Commission communication — specifically confines its definition of consumers to natural persons?
I cannot explain that and I have no means of doing so. The Deputy should put that question to the Commission. I am dealing with a Directive from the Commission which defines the word exactly as we have provided in the Bill. I do not think I have flexibility to change that.
The Minister or his officials would have been aware of this anomaly. Has he any explanation of the difference between this Directive and the one on contracts?
I have no means of explaining to the committee why the EU Commission has different definitions for the same thing in different Directives. That question should be put to the Commission. Prior to the Deputy drawing this to my attention I was not aware there was a different definition in another Directive.
I ask the Minister to investigate this matter before Report Stage so we may return to the matter.
I join Deputy Molloy in that request because I do not accept the Directive confines the Minister as tightly as he thinks. The Directive defines the consumer as "the person who takes or agrees to take the package" and the retailer as "the person who sells or offers". The Directive speaks of "the person" throughout. The Minister also refers to "the person" throughout the legislation.
It is not clear from the Council Directive that companies should be included. Companies should be excluded from this Bill because a company doing business with a travel agent is well able to look after itself. It is far too bureaucratic to provide that a limited company, with a secretary and board of directors, must be protected by consumer legislation when a company is more than adequately able to deal with a travel agent.
The bias is often the other way; a multinational company might book its tickets through a travel agency employing two people. Is the Minister saying that a multinational needs protection against the travel agent when the company, not the travel agent, has more resources?
I ask the Minister to again look at this because this issue of whether the Government means to include companies arises throughout the Bill. Is the Minister trying to protect a limited company booking a package holiday? That is going too far; companies do not need to be protected, hence these amendments but individuals who do not have the same resources do. The Directive clearly used the word "person". The Minister would not have any difficulty with the EU if he defines person as meaning natural person because the EU Directive does not deal with the issue.
I understand that other countries which have implemented the Directive have taken the same line we propose taking in this Bill. However, there is validity in the arguments and I agree to look at this again and come back on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 3 and 4 not moved.
I move amendment No. 5.
In page 5, subsection (1), line 25, after "organiser" to insert "for purposes unconnected with the consumer's business, trade or profession".
This is a proposal to amend the definition of "package". In proposing this I am conscious that in a report to the Council of Ministers the European Parliament proposed an amendment to the Directive which would have brought business travel specifically within its scope. The proposed amendment was rejected by the Council of Ministers and the report of the meeting of 13 June 1990 states:
The Council and the Commission state that when a business trip involves separate bookings of transport and accommodation which do not constitute elements of a pre-arranged package, even though they are invoiced simultaneously by the travel agent, this does not constitute a package for the purposes of this Directive.
It is doubtful the Directive was intended to apply where two entities of equal bargaining power come together to conclude what is essentially a purely commercial contract. To create a legal provision which gives such rights to one party to a commercial contract as a matter of law is a departure from the basis of legislation in a free market economy.
Again this is fundamental to the Bill and I ask the Minister to accept the amendment. This can be a complicated issue and I will try to put it clearly. If a person wants to make a business trip to London for five days, he will almost certainly ask the travel agent to organise a car and accommodation — Ryanair and Aer Lingus tickets usually include that.
That means this trip meets two requirements for a package holiday under the Bill, and to be such a holiday two of the three requirements must be met, therefore this is a package holiday. This means someone travelling on a business trip for two or three days is covered by the Bill, so the travel agent must provide a written contract and have extra bonding, is responsible for explaining the health requirements for the duration of the stay, must give full information, must stand behind the brochure, etc. That bureaucracy is not necessary for travelling on business.
From a different angle but making the same point, this amendment seeks to exclude business travel. It is one thing to protect a person travelling to Spain on a two week holiday who is promised a view of the beach; that is fair consumer legislation. It far exceeds the intention of protecting the consumer to include business travellers and make it possible for them to sue their travel agent if their arrangements do not work out—the car does not arrive on time or the room is not to their liking. Under this legislation, in the name of consumer protection, the business traveller can sue the retailer.
Rather than have all travel defined as a package, I therefore ask the Minister to find a way to limit this Bill to holiday travel and exclude business travel — if not through the words in this amendment, then in some other way. Business people are well able to look after themselves when making travel arrangements.
Arising from our peripheral geographic position I a anxious to ensure business travel is not included in the terms of the Bill. I am satisfied it is not and the arrangement the Deputy spoke of — where a businessman asks an agent to get him a hotel, a car and a flight — is not a pre-arranged package offered by a travel agent; it has been arranged by the businessman, with no one urging him to do so. If it was the other way around and Aer Lingus offered a package to suit business people, that would be covered, because it was a pre-arranged package offered by the seller to the consumer. We drafted this very carefully. Incidentally, other countries have included business travel in the terms of their legislation. We very cleverly drafted this section to ensure that business travel is excluded.
We send it to the Commission and had it cleared by it. I do not think we can go any further and maintain that clearance. Business people would only be affected now if they took a pre-arranged package. If they simply make the arrangements for their own travel, through their secretary or whoever, that is not included in the terms of the Bill. The Bill as it stands meets the case the Deputy is making. If we go further, the Commission will not clear it.
The amendment mentions "profession". One of the biggest areas of package deals encompassing transport and accommodation is school tours and youth groups in the education area. Would that be excluded by the amendment proposed by Deputies Molloy and Brennan? Teachers often put together packages at Easter and in the summer to cover education matters. I want to ensure that no amendment would be introduced that would interfere with that. This category should get full protection as consumers even though they might be described in terms of a trade or profession. I am not sure whether they would be described in terms of business.
The definition should be wide enough not to exclude that large category. I know, having spoken to teachers' unions and boards of management, that there are continuous problems with certain organisers who put together package deals which breakdown and where very often, there is not sufficient comeback. I am anxious that educational package deals would not be excluded.
I am glad and appreciate that the Minister does not intend to include business travel. That is what I understand him to be saying.
Yes, strongly.
He does not intend to catch the type of business travel about which I spoke where one goes to London for a week on business and makes arrangements. This is not comparable to going to Spain for a fortnight on a pre-arranged package. I accept the Minister's good intention. It is important to have it on the record because anyone who has read the Bill has got the opposite impression. It may be because of the drafting.
My second point relates specifically to drafting the section. The wording in section 2 at line 24 is: "package", subject to subsection (2), means a combination of at least two of the following component pre-arranged by the organiser. The three components are transport, accommodation or other tourist services.
Pre-arranged.
Yes, but the point is that the section says "two of the following components pre-arranged by the organiser". A person could pick up the 'phone, say they want to go to London in two days' time, ask someone to arrange it for them and book the transport and accommodation. One could call that arranged from the time he or she picks up the 'phone. However, one could equally call it pre-arranged if the retailer responds that they have a package through a deal with the hotels and a car hire company. This is pre-arranged because when an individual rings the travel agent, his deal with the car hire company and the hotel is already in place. He will not be doing a special deal for the individual who is in fact buying into a pre-arranged package. Any layman reading that section could only conclude that the phrase "pre-arranged by the organiser" would catch the kind of example the Minister does not want to catch. That is my reading of it.
I have a final point for the Minister which I do not intend as patronising as that would be wrong. I dealt with the EU Commission for eight years while sitting on the Minister's side of the House. I do not believe it is wise to slavishly assume that every single word in the Bill has to reflect the directive. Many directives have been transferred into domestic legislation where we have been able to put an Irish spin on the legislation and won EU acceptance for it. If the Minister wanted to clarify this, I believe he would not have any difficulty making a case to the relevant EU Commissioner and saying he wanted to clarify the matter perhaps because of the unique Irish interpretation of the word "pre-arranged".
Section 3 of the Bill deals with the point raised by Deputy Costello and we will be discussing that presently. Other countries — Britain, for example — have specifically included travel trade within the terms of their legislation. Our Bill was carefully drafted to ensure that business travel did not come within the definition of package.
The important point is that business travel is not pre-arranged even in the manner in which the Deputy describes it. The guidelines which will be issued by the Director of Consumer Affairs as to what constitutes a package will make it clear that business travel is not covered. I think that meets the case. I am anxious that the case is met and that there is no ambiguity. However, we believe we would not have got anything less past the EU Commission. I take the Deputy's point about not slavishly following everything word for word. I think we have pushed the barriers out as far as we will get away with on this one — maybe I should not have said that on the record of the House. I believe this is as far as we can go within the spirit and terms of the directive. Both I and the travel trade are quite satisfied that this meets what they perceived as a problem previously.
I disagree with the Minister. The travel trade has indicated otherwise to me. I have correspondence from them on this point. They want to have business travel clearly excluded in the legislation. The Minister has not added anything to his reply on Second Stage when he said the Bill had been carefully drafted to ensure that business travel does not come within the definition of "package". He added that the important point is that business travel is not pre-arranged and that the guidelines which will be issued by the Director of Consumer Affairs on what constitutes a package will make it clear that business travel is not covered.
Will the Minister state what these guidelines might say which would indicate clearly that business travel would not be covered? The amendment proposed by Deputy Brennan and myself excludes the kind of business travel the Minister is trying to exclude but the Bill does not specifically exclude it.
The examples given by Deputy Brennan are realistic. A person on a business trip might be availing of something which, in the travel trade, might be termed pre-arranged but would just happen to suit his schedule. A flight and a car facility at the other end are two of the factors which make up a package according to this definition. We could be in for much argument as to whether it was. If there was a dreadful accident, there could be much legal argument in the courts as to whether the provisions of the Bill would apply. We have an obligation to be as specific as we can in legislation, particularly in the definition sections.
I note the Minister repeated here that the Director of Consumer Affairs will have a special role in laying down guidelines which he says will clearly exclude business travel. Would it not be much wiser if the Director of Consumer Affairs was given clear guidance in the legislation itself by the insertion of an appropriate amendment to the section?
I do not have the details of the guidelines as they are being worked on at present. They will make it clear that business travel is not covered by the Bill. The combination of any of the two must be pre-arranged by the organiser when sold or offered for sale at an inclusive price, and must cover a period of more than 24 hours or include overnight accommodation. The key word is "pre-arranged".
One could not go to London in a non pre-arranged fashion.
That is not true. What we are talking about in pre-arranging is a package being put together and offered for sale as a package. That is quite different from somebody going in——
Where does it say that?
——to buy separately the various parts of the package and taking them together, and even paying for it together. That does not make it into what the Deputy is afraid it might. I am satisfied that what we have done in this section of the Bill meets the case and I am anxious the case would be met. I cannot accept the amendment as I believe we would have difficulty with the EU because of the way it is worded and because of what other countries have done in this regard — they have included the travel trade.
A business person may want to go to Paris, for example, on a two day business trip, he contacts a travel agent and tells them the flight times he wants and that he also wants a car at his disposal while there. If the travel agent already has arrangements with a car hire company to tie up with flights coming in and cars being available is that a pre-arranged package?
That would be regarded as an ad hoc arrangement and is not a pre-arranged package.
How is that, determined?
We can talk ourselves into a knot on this now.
We might as well do it here as in the courts later.
It might not be a good idea to shine a particular light on what we have done in this section. We have gone as close to the wire as we possibly can within the spirit and meaning of the directive. We will satisfy the business people that they will not be affected. If business people buy pre-arranged packages they will be affected like anybody else.
There does not seem to be any move in the Minister's position as stated on Second Stage and as the amendment was put down after that I will press it.
The Minister's last comment worries me. A lot of business travel is from here to London and buying into the pre-arranged hotel booking a car hire system means you will be caught.
If one buys a pre-arranged package one will be covered by the protection in the Bill. Business people seldom can avail of pre-arranged packages.
To avoid being covered by the Bill, you would have to ring a travel agent and tell them that you do not want a pre-arranged package, just elements of it. The travel agent may say they have a deal worked out with the hotels and the car hire firms but you would have to reply that because of the legislation you did not want a pre-arranged package.
The pressure to exclude business people from the Bill is not coming from business people, of course. It is coming from the trade. If a business person wants to go to London for four days and the travel agent offers a package that is cheaper, one would take the advantage. The travel agent and the organiser has to give the cover to the person buying the package. That would be included in the price offered. We are not talking about protecting the consumer here, we are talking about ensuring the trade is not affected.
I understood the Minister to be of the view that business travel should not be included.
That is right, but if business people buy pre-arranged packages they are then included.
So a business person would have to buy a non pre-arranged package, which would mean that your travel agent could not organise two of the three elements of section 2 — transport, accommodation or other services. They have to be separate bookings and not a package.
The point is that from the consumer's point of view, in this case a business person, if they can get a better deal as a package there is no reason for them not to take it. It is seldom that a business person who would have various arrangements to be made to various destinations will be able to get a pre-arranged package.
Can the Minister give us the reason he does not want business travel to be included in the definition of the package?
For a good reason — it is important for Ireland that our peripheral position is taken into account. The amount of travel undertaken by our business community should be as free as possible with as little restriction or protection as possible. That is why I do not want this area covered by the Bill.
Is the Minister proposing this in the interests of the business traveller or the travel trade?
It is in the interests of both.
Why did the Minister state that an amendment such as we are suggesting is only in the interests of one group?
The reason is that the travel trade made exactly the same case to me as to the Deputy, I assume.
The Minister said a while ago that they did not want a change.
Deputies should not get into arguments.
I assume the travel trade would make a case to me in their own interest rather than in the interest of being good to the whole of humanity. I accept that in good faith. The business community did not make any representation to me about it.
It is not just a matter of whose interest it is in. It is a matter of bureaucracy — whether we want to lay a legislative regime on Ireland's 160,000 small companies. I know the Minister calls it protection but it is bureaucracy because contracts have to be drawn up and information provided about health, the length of stay, the length of notice and the bonding. It is a new burden on top of Ireland's small companies: they have enough to put up with and they do not need this one. It was all right for the EU when drafting the directive to deal with some of the companies in Europe but it did not take into account that there are 160,000 companies here employing fewer than ten people each. As business travellers they will be affected by this Bill.
The section defines package. The Minister says he does not want that package to include business travel and we say we do not want the package to include business travel. All we are arguing about is the wording. The section refers to any "... two of the following components pre-arranged by the organiser...". We could argue at length about that, but if that is what the Minister intends, any plain reading of that section can only lead to the conclusion that an ordinary business trip would nearly always be pre-arranged. We are not, I suspect, going to settle that by argument.
A pre-arranged package is a package that is already made up ready to be sold. The situation the Deputy is describing simply does not fit into that and will be excluded from cover by the Bill.
We have given a lot of discussion to this amendment.
Our interest on this committee is to seek to ensure the legislation we are discussing will be concise and specific and not open to different interpretations. That is our interest: it is not specifically in the interest of consumers or the travel trade, but of good legislation. There is an ambiguity in the Bill in regard to business travel. We have a clear statement from the Minister that it is not his intention that business travel would be included, yet we have a definition of package which would allow for the inclusion of business travel. That is contradictory.
The Minister's explanations are not convincing. If he could tell us what the Director of Consumer Affairs was proposing to state in his guidelines it might be helpful. It would have been more helpful if what he was proposing had been written into the legislation, then there would have not been the need for this long discussion.
It seems we are so close to agreement that there is little point in arguing any further. The wording of the section is certainly open to different interpretations. The Minister would help us all by agreeing to look at changing the wording and then we could proceed. The difference is so small at this stage that it should not be pushed any further; the Minister should agree to look at it.
The only way that this matter can be made absolutely crystal clear, given the terms of the directive, is to include the travel trade. What we have sought to do in the Bill is to ensure that the travel trade from Ireland will not be included. We hav done a good job with the drafting in that regard and the guidelines that will be prepared by the Director of Consumer Affairs will make it absolutely clear that the travel trade will not be included.
Amendment put and declared lost.
Section 2 agreed to.