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TOUR GUIDES – LEGAL ASPECTS
By
Dr. Jose Fosman
President Emeritus Iftta
1. INTRODUCTION – Importance of Tour Guides
The role of a Tour Guide is of paramount importance in every Group Tour, and it is almost
impossible to think of an Organized Tour without the presence in it of a Tour Guide.
Also in individual Tourist visits organized by the Tourist himself, a lot of times –
apart of use of the written Book Guides – we see the individual Tourist seeking the help of a Tour Guide, and
even in business travel, the businessmen – with some hours spare in the city he had come to make business, wants
to take profit of this hours, and the easy way to do that, and to see and know more, is to take to services of a Guide
with or without a car, or a Sightseeing Bus in which we have also Guides in most of the cases, if there is not an
“audio-guide” without the personal presence of a Guide.
The success of a Tour depends a lot on the capacity, knowledge, skills and professionalism
of the Guide.
1.1 For all the above reasons, it is difficult to understand why the Legal
position of the Guide in the Travel Industry has not till today, fully studied.. Today, we will try to make our
contribution to that needed study.
2. LEGAL POSITION:
The Tour Guide appears before us in several legal positions, according to his labor
status, his role and functions.
2.1 Towards the Tour Operator/Travel Agency, (hereinafter: Travel Agency), he is
generally an employee of the Travel Agency, as well as all the employees of the Travel Agency – (although he has
some particularities which we shall study thereupon), but the relationship is one of Employer/employee.. All the
relevant Laws, Statues and/or Regulations in the field of Labor Law in every Country applies to him.
2.2 In many cases, he is not an employee of the Travel Agency, but a self employee
– “a free contributor” what we call a “Freelancer”. In these cases, the Guide give its
Services to the Travel Agency, as an “Independent Contractor”.
2.3 The distinction between the 2 above situations is very difficult, and has
given a lot of work to the Courts.
2.4 When the Tour Guide is in the payroll of the Travel Agent, it is clear that we
stand before an employee of the travel Agent.
2.5 The problem appears, when the Guide is not an employee of the Travel Agent, he
appears before the Travel Agent as a “Freelancer”, he gives the Travel Agent a receipt of payments he
receives from it, adds the legal V.A.T. as any Enterprise and the Travel Agency does not look him at all as its
employee.
2.5.1 In this cases, when a conflict arises between the Travel Agent and its Guide,
and they go to Court, the Guide tries to see himself as en “employee” of the Travel Agency, and asks for a
lot of payments due to all employee as: Payments for Extra Hours, Severance Payment, Sick Payments, Annual Leave,
etc.
2.5.2 The decision is a very difficult one. When the Court comes to a judgement in
this cases, it does not look at the “Receipt” given by the Guide to the Travel Agent as a definitive proof
of the fact that he is an “Independent Contractor”. The Court in this cases – as in all Labor Cases
where the Problem arises – applies some Tests that helps the Court to make the right decision, and the labor
Courts have devised the “Organization Test” as the “Test of the times” (2), since before that
test, the courts applied the “Control Test” (if the employee performed his work under the control of the
employer).
Also in the European Continent, the “Organization
Test” is the decisive to find out if there is an employee-employer “relationship” (3).
2.5.3 What is the “Organization Test”? Lord Denning (4) defined it,
putting the principle of “integral part of the Business” as a paramount one , and the Israeli National
Court in light of his definition ruled: requisites for “integration” in an enterprise are the existence of
an enterprise for production, services or other purposes, into which it is possible to integrate; that the activity
executed is a regular activity of the Enterprise and that the person executing the activity is part of the regular,
organic system of the enterprise, and as such is not an “external factor (5) . The test finds if the removal of
the person in question affects the regular, daily routine, function of the business, or otherwise comes from the
outside to complete or facilitate the enterprise (6).
2.5.3.1 A second requirement for integration is that the person “does not
have his own business serving the enterprise as an external factor” (7).
2.6 In order to realize the difficult to decide about the problem, we can see a
judgement of the National Labor Court in Israel, that revoke a judgement of the District Labor Court in the case of a
Tour Guide based in the same facts. Two different and contradictory judgements!! (8).
2.6.1 The Facts were: The Guide worked during 3 years as a Guide and his services
were terminated because of “decline of the quality of his work… and “decline of Tours because of the
Intifada”.
He worked as a Guide an average of 12 days a month with interruptions of a week or more,
during the period, he was overseas two full months. He was called to guide by the Dan Cooperative (an Enterprise
dealing within others, with Organizing Tours) by phone, they did not commit themselves to give the guide any number of
days of work, and he could accept or not the specific guidance during the Tour, he guides as he liked in a professional
way and without interference of the Cooperative, although visited places of the Tour well decided by the Cooperative.
The Guide was also allowed to Guide Tours from another Tour Agents. He was paid according to a fixed tariff per days
of Guidance.
2.6.2 Based in the aforesaid facts, the District Labor Court ruled that there was not
case of an employer-employee relationship.
2.6.3 In the Appeal, the National Labor Court revoked the judgement and ruled that in
fact, it was yes, an employer-employee relationship.
2.6.3.1 The Court found that the Guide was integrated in the regular business
of the cooperative, because its business was the organization of Tours and a Guide is a central factor in the carrying
out of a Tour.
2.6.3.2 Also, the second aspect is present. The Guide had not owned a
business enterprise. The receipt of commissions from shops or restaurants, where he drove the Groups is not a proof of
having a self enterprise.
2.6.3.3 The guide was not a “Freelancer” because his elasticity
during the Guidance was only in what is related to the explanations he gave to the Tourists as a
“professional”. The way the Tour was conducted, showed that the cooperative set the track and the places of
the visits, the cooperative set the time and hours to take the Tourists and to bring them back, and the hours of lunch,
and during the Tour, almost a permanent contact was held between the Guide and the Cooperative.
2.6.3.4 The Guide was part of the personal of the Cooperative and not as a
marginal part of its business.
2.6.3.5 The Tour was carry out in buses of the Cooperative and the Guide was
not allowed to bring another one to replace him.
2.6.3.6 There were reciprocal commitments as employer and employee, and
although the Guide could reject guidance, he did it only in very rare occasions and the same in guidance for other
Travel Agencies. Checking the days the Guide worked, it appears that the work was continuous and stable. The Tourist
branch is Seasonal, and that explains the fact of the number of days he was employed.
The appeal was upheld in the file and was reversed to the District Labor Court, in order
to assess all the payments the Cooperative had to pay to the Guide as “an employee of the Cooperative”.
3. GUIDANCE AS A PRIVATE ENTERPRISE
3.1 The Tour Guide may act as a Private Enterprise, and when acting in such a way, he has
all the duties, responsibilities, and/or rights as any private enterprise. He can give his Services to a Travel Agent,
or he can give his Services to a private Tourist.
3.2 He can work alone or he can have other guides as employees. In all these cases,
he acts as an “Independent Contractor”.
4. “ESCORT GUIDES”.
4.1 Is a person who is contracted by the Travel Agency to escort the Group and to have
under his responsibility all the administrative aspects of the group in the Tour, resolves in the name of the Travel
Agency and/or the Tourists, all the problems that may arise in the Tour, Hotels, Restaurants, Customs, Airlines,
etc.
Sometimes this function is also done by the Tour Guide, without a participation of an
especial Escort Guide.
4.2 In some countries, the Regulations dispose the obligation of the Travel Agency to have
in any Tour overseas, an “Escort Guide”. Israel is an example of it.
4.3 According to Tourism Services Regulations (Escorts in Overseas Tours) 1990 (9), in its
clause 2 it is stated that “In every Overseas Tour organized by a Travel Agent, it will be a Licensed
“Group Escort” according to the regulations “ and that it must be indicated that fact in every
publication of the Tour and in its brochure.
The regulations go on and determine the Conditions to got a License as “Tour
Escort” and duties and obligations of the Tour Escort and the Travel Agency.
4.4. This Regulation was revoked on 4.3.97 and today there are no regulations obliging a
Travel Agent to have an Escort Guide in his overseas Tours. (10)
5. LOCAL GUIDES:
Almost every Country has its regulations regarding the work of Guides in its Country,
concerning his training, and conditions to be Licensed.
5.1 In Israel we have the “Tourism Services Regulations (Guides) 1967 (11)
5.2 According to Art.9 © of the Regulations, “A person will not act as a Guide
for consideration, will not take passengers for consideration as a Guide and will not offer his Services as a Guide for
consideration, unless he is in possession of a License”.
5.3 The Regulations set also: Eligibility for Guide License, form of Application,
Exemption for special reasons, Examinations, Types of License: National, District, Local), Renewal of Licenses,
Suspension and Cancellation of License, etc.
5.4 Art. 9 © of the Regulations - similar in almost every Country – has
given work to the Supreme Court of Israel, since the Association of Travel Guides filed claims about the work in Israel
of Foreign Guides, who have not in their possession an Israeli License. It must be stressed that Israel is the Holy
Land, and has Pilgrimage of Religious Faith, which come in Groups headed by their clergyman.
5.5 The Ministry of Tourism reached an “Understanding” with Churches:
When the Tour is one of Pilgrimage, the Group can be guided by the personal of the Church in every part of the Country,
when the guidance is connected with Religious and Cult, which are the principal purpose of the visit.
5.6 The Israel Association of Guides, challenge the reasonability of this
Understanding in the High Court of Justice (12), but the Court judge that the understanding is reasonable and it does
not go behind the ratio of the Guides Regulations.
5.7 The Association of Tour Guides applied for a “Further Hearing” (13)
but the Petition was denied
6. FOREIGN GUIDES
Almost every Country in its Regulations, has a provision similar to art. 9 © of the
Israeli Law prohibiting the Guidance of Tourists – as well as locals – if not by a Licensed Tourist Guide
obtained in the respective Country.
6.1 A very interesting problem appears in the European Union Countries, when
a license Tours Guide in a specific Country member wants to guide in another member State.
6.2 According to the European Community Treaty (14) one of the paramount
principles is that a citizen of one member State must be free to live and work in another member State, and thus were
implemented as early as in 1968.
6.3 But Tour Guides or Tour Managers or Escorts have had a lot of problems
during the years, when trying to act according to this principle. We have to distinguish between a Guide, member of a
State Member, willing to establish himself in another Country, and guides which accompany Tourists from his Country to
another member State, while remaining based in his original Country.
6.4 Art.59 of the Treaty reads:
“Within the framework of the provisions set out below, restrictions on freedom
to provide Services within the Community, shall be progressively abolished during the transitional period in respect of
naturals of a Member State, which are established in a State of the Country, other than of the person for whom the
Service are intended.
The Council may be acting by a qualified majority on proposal from the Commission
extend the provisions of the chapter to naturals of a third Country who provide Services who are established within the
Community”.
6.5 The profession of Tour Guide is regulated in a different manner in different
States of the European Union. There are States that may have no regulations at all, other States prescribed
qualifications to be a Guide, but tolerate other Guides of other Member States if there are not using the title
“Guide”. But there are other States in which the activity may only be exercised by those Guides having
professional qualifications, having passed required examinations of the specific Country.
6.6. Although they are Council Directives of Mutual Recognition of Professional Titles
(15) the European Court of Justice ruled (16) that restrictions may arise as a result of the application of national
rules which affect any person established in the National Territory, which come within the scope of the Treaty (17)
and that they are based in - “Public Interest”
“ Intended to Protect recipients of Services
“ Consumer Protection”
Conservation of National Historic and Artistic
Heritage (18) being the latest specially, the ratio used to justify restrictions to work of licensed Tours of another
Member State.
6.7 An interesting case was the case of the Commission against Spain (19).
In this case, the Court ruled that Spain has failed to fulfill its
obligations, under the Treaty
One) By making access to the profession of Tour Guide in Spain to the possession of
Spanish nationality.
Two) By failing to “establish a procedure for examining qualifications acquired by
a Community National who held a diploma as Tour Guide or Guide Interpreter issued in another Member State and compared
them with those required by Spain.
Three) By making the provisions of Services by Tour Guides
travelling with a group of Tourists from other Member State, subject to the possession of a License which required
specific training evidenced by a Diploma, when the guidance is not in places like Museums or historical monuments
(which in those cases the restrictions are compatible with the treaty if those units are allowed to be visited only
with a specialized professional licensed Guide of the state member in question.
6.8 The European Court holds in 1992 (20) that in the light of the specific nature of
certain professional activities, the imposition of specific requirements for the purpose of applying rules governing
those types of activity is not necessarily incompatible with the Treaty.
6.9 Studying those judgements of the European court of justice against Spain, Greece,
Italy, France, we come to the conclusion, that only if the guidance is to Museums or Historical Monuments for the sake
of Conservation of the National Historic and Artist Heritage of the Member State, restrictions may be imposed to guides
licensed in other Member State.
7. WORK CONDITIONS
7.1 When the Tour Guide is an employee of the Travel Agent Tour Operator, all the
Labor Laws in force in every country applies – in principle - to all the workers and employees including Tour
Guides.
7.2 But the specific work of a Guide, hours of work, conditions of work, etc. need to
be taken into account, and some laws can not be applied in the full extant to the work of a Tour Guide.
7.3 One of the important problems we handled above (in chapter 2) relationship
employer-employee between the Travel Agent and the Tour Guide, has to be also taken into consideration.
7.4 But in order to understand some specific questions, we will have a look to the law
rulls in Israel.
7.5 One of the problems that arises specially in cases when the Tour Guide is
dismissed by the Travel Agent, is related to claims the Tour Guide submit to the Courts, for “Extra Hours”
of work.
7.6 In 26.1.2000, the General Confederation of Workers in Israel came into a
Collective Agreement with the Association of Israel incoming Tour Operators Association (21), according to the
Collective Agreements Law – 1957 (21 A).
7.7 On the 11.10.2000, the Ministry of Work and Welfare, issued an “Extension
Order” (22) according to which all the terms and Conditions of the Collective Agreement will apply to all
licensed Tourist Guides in Israel and their employers.
7.8 Between the interesting points which come to a solution in the Collective
Agreement are the following:
7.8.1 The payment of a Tour Guide is of U$S 114.- per day of 8 hours work, with
10% increase of that amount when the Guidance is in 2 languages and 25% if it is in 3 languages.
7.8.2 If there is a need for extra hours work only the employer has a right to
request extra hours according to the program of the “Tour”
7.8.3 The extra hours are calculated as follows: They will be paid only if the
average work hours during all the Period of Guidance was higher than 8 hours.
7.9 No payment will be made for Annual Leave, Sick Pay, because all these was taken
into account when setting the price of the work day (7.8.1 above mentioned).
7.10 The Employer must arrange a room for the Tour Guide in the Hotel, where the Group
stays –in a basis of ½ Pension. If the Hotel is full, an alternative Hotel must be provided to him in a
Hotel at least of 3 stars.
7.11 Transfer from Ben Gurion, the International Airport to the Hotels are calculated as
½ day work if there are in the range of 100 km. More than that will be calculated as a full day work.
7.12 The tourists or the Group are the responsibility of the Tour Operator (Travel Agent)
and the Guide is only an employee that carries out the Services under the Responsibility of the Tour Operator/Travel
Agent.
7.13 All the elements of the Tour have to be agreed by the Tour Operator/Travel Agent and
the guide in written lircuit Sites to visit, Restaurants, Shops, Brochures, etc.
7.14 Prohibition to the Tour Guide to make commercial Contracts with Travel Agencies in
Israel or abroad, Hotels and/or Tour Leaders in order to have direct commercial links, to give services to Tourists
which were guided by the Guide in the framework of his work with the Employer.
7.15 Optional Tours by the Guide will be carry out only with the previous Agreement of the
Employer and, in no case will be carried out by the Guide. without the knowledge of the Employer.
8. COMMISSIONS FROM SHOPS, RESTAURANTS, COMMERCIAL
ENTERPRISES.
8.1 It is generally known that Guides get commissions from the Shops, Restaurants and
other premises when they lead the Tourist Groups to those places.
8.2 Art.7 of the Law (23), prohibited Tour Guides to ask for, to receive and/or accept
commissions or any other consideration from any persona for driving Foreign Tourists to their enterprises., and also
prohibited the Shops to give such commission.
8.3 This provision was criticized very strongly, stating that it did not look into
reality and makes people offenders of the law, and furthermore, creates a “black market” without paying
Tour Guides for this Income.
8.4 Lately in 1999 (24) the article was derogated.
8.5 But we have to take into consideration that some regulations apply to Tour Guides
in this aspect:
8.5.1 According to art.15 of the Tour Guides Regulations (25) the Ministry has the
right to suspend or cancel the license of the guide if while carrying out his function as a Guide, he advises any
person to patronize a business not in possession of a valid Approval under the Control of Commodities Services Order
(26) or directs or takes any person to such a business, which under the circumstances constitutes inappropriate
preference of a business not in possession of such an approval one, over a business in possession thereof.
9. RESPONSIBILITY OF A TOUR GUIDE
9.1. Not always the Tour Guides are aware of their responsibilities according to the Law,
towards the Travel Agents/Tour Operators and/or towards the Tourist. Lack of this awareness is a result that in almost
every court case regarding problems with Guides, the Defendants in most of the cases are the Travel Agent/Tour Operator
land not the guide, based in their Vicarious Responsibility as Employer of the Guide.
9.2 According to the Law, the guide may be legally responsible for mishaps in the
guidance according to his legal position in relation to the guidance (27).
9.3 If the tour Guide is an Employee of the Travel Agent/Tour Operator, he is
responsible to them:
9.3.1. For Breach of Contract, according to the Law in every Country regarding this
(28).
Even if there is not a written Contract between the Travel Agent and the guide, it is
agreed that an implied disposition in any such contact is that for a payment, the employer pays the employee (the Tour
Guide) the later commits itself between others to fulfill his tasks accordingly to the normal ways of work, of any
reliable guide with reasonable care and skills, and to take and bring back the Tourist safe, in what is concerned with
him.
9.3.2 The Guide is also responsible towards his employer, for Tort, specially for
Negligence (29).
9.3.3 If the Tour Guide is not complying with laws and/or Regulations of any kind,
and for that violation, a damage is caused to someone, according to the Civil Wrong Ordinance above mentioned, the
Tour Guide may be responsible for the Tort “Failure to fulfill a Statutory Duty” and it is considered a
tort in its own right.
Accordingly, if the Tour Operator is sued for instance because the Guide took the Group in
a path that is not signalized by the competent authorities as a safe path, and a tourist has an accident, without any
further act from the Tour Guide, he will be responsible for all the damages emerged, only because he did not fulfil a
statutory duty and damages were caused as a result of it. (30) (31) (32).
9.4 In this case, when the Guide is an employee, he has not rivalry with the
Tourist.
9.4.1 But, he will be responsible towards the Tourist for Torts: Negligence (33) and for
the Tort of Not compliance with Statutes and/or Regulations (34).
9.5 Of course the Travel Agency/Operator will be responsible towards the Tourist
for any wrongdoing by the Guide – his employee -, as per its Vicarious Responsibility (35), and also may be
responsible as per his failure to choose well his employee (36).
9.6 If the Guide is a Free Lancer, disconnected with the Travel Agency and/or
Tour Operators, having his own Enterprise of Guidance, and/or being hired directly by the Tourist, the Guide will have
the same general responsibility, as any Independent contractor, according to the General Principles of Law and the
Contract Law and/or Torts Law and/or Civil Wrong Ordinances.
9.7 In the European Union, the responsibility of the Travel Agency for the Acts
of their Guides and for Travel Agency, is sometimes shifted to the “Organizer” and/or
“retailer” by the Council Directive on Package Travel (37) (38), which intended to choose a party
responsible, strictly liable in the event of any failure to deliver in every component of the Package including
guidance
9.8 According to the above mentioned Directive, Every Member State could choose
when coming to implement it in its System of Law, to make responsible for any component of the Tour – included
guidance – the organizer (the operator) or “the Retailer” (Travel Agency) or both of them. In such a
way, the consumer has to sue for failure in the Guidance the body and/or person which according to the Law of the
member state, is responsible towards him, in the framework of the Directives on Package Tours. There could be a case in
which the Guide is an Employee of the Travel Agent, but the Consumer has to sue the Tour operator as the Organizer, if
the Implementation of the Directives in his Country states so. (39) (40) (41) (42).
9.9 Notwithstanding the aforesaid, even if according to the Laws in the different
member States which implemented the Directives, the Travel Agent and/or Tour Operator are responsible towards the
Tourist for the proper performance of carry out of the Tour, irrespective in the Services are provided by them or by
other suppliers of Services, they have according to the last part of art.5.1, of the Directives, the right to pursue
those other suppliers of Services
9.9.1 A very logical and legal conclusion even without the specific provision of
this article of the Directives.
9.9.2 It means also that the party, that according to the Law was to pay the damage
to the Tourist, if the damage is a consequence of a defective Guidance, the obligation to pay the damages may redress
to the guide at the end of the day.
10. In order to give only a mere idea of the Responsibility that may lie in
the shoulders of a Guide, an important judgement of the District Court (43) and High Court of Israel (44) is brought
herewith (45). In this case, a suit was filed by the parents of a 17 year old American John Cohen, who was severely
injured in a fall, while touring in Israel in 1981. During a hike in the Golan Heights, the defendant “The
Society for the Protection of Nature in Israel” Tour Guide, took Cohen’s group on a Path explicitly marked
forbidden. Cohen slipped from the path and fell into a canton He suffered sever brain damage, was almost completely
paralyzed and unable to speak.
10.1 John Cohen’s parents filed a suit in the District Court of Haifa, against the
Society of Protection of Nature in Israel, which was hired by the Travel Agent – who was also sued together with
its Director General, the State of Israel (for being in Possession of the place where the tour took place and being its
duty to signal the paths accordingly).
10.2 The District Court found the Society of Protection of Nature in Israel and the State
of Israel guilty and set damages at U$S 6.863.585,43, a record amount never awarded before.
10.3 The District Court applied the basic concept that in cases when a foreign citizen
living abroad is injured, the Court is bound to assess the damages according to the principles used in the Country of
the injured.
10.4 The judgement was appealed before the High Court of Israel, which reduced the award
to U$S 4.137.037, being as well the biggest amount ever awarded in Israel. In cases like thisThe High Court agreed with
the principle that in assessing the damage, have to be taken into consideration where the plaintiff lives. For
instance the medical expenses have to be calculated according to the amounts the plaintiff will have to pay in the
United States and not the Israeli figures for the same treatment, as well as the compensation for loss of Income had to
be determined according to U.S. standards.
10.5 The Tour Guide was not sued, in this case, but only his Employer (the status of
protection of nature), but it could have been also sue in my opinion, in light of what was said in clause 9.4
thereon.
A very good professional responsibility insurance is highly recommended for tour
guides.
Dr. Jose Fosman
C:DresetwordTrabajosTour Guides - Legal Aspects (2005).doc
FOOTNOTES
1. See: Lavi & Mishchinsky v/ Assessing Officer (1956), Gazette of Laws 11, Pag.
526-528, cited by Menachem Goldberg: “Labor Law in Israel” Pag. 14
2. See Case Marko v/ National Inssurance , published in Isarel’s Labor
Judgements (P.D.A.) 1973-5, pag. 31,35,36.
3. See: “Atbetsrecht” by Prof. A. Sollner, W. Kohalammer Verlag. Suttgart
Berlin Koln, Mainz- 1969 p. 197 cited by Menachem Goldberg, supra 1.
4. Stevenson Jordan & Harrison Ltd. v/Mc. Denald (1952) T..L.R. 101, cited by
Menachen Goldberg supra, 1 page 20
5. Natania v/ Berger, publised in Israel Labor Judgements (1971) (P.D.A.) pag. 177,
190. Ibidem 1 Pag 33.
6. Ibidem 5, pag. 173
7. Ibidem 5 , pag. 188
8. Labor Appeal 300229/96 given on 16.1.02, published in Israel Labor Judgements
(P.D.A.) 37, Pag. 817: “Ami Cohen v/ Dan Cooperatfive.
9. Tourism Services Regulations (Escort in Overseas Tours) - Collection of
Regulations 1990, {ag/ 324. 672.
10. Collection of Regulations 1997- 451
11. Tourism Services Regulations (Guides) 1967. Collection of Regulations 3.1.1967, Pag.
1156 and its ammendments.
12. Israel Association of Tour Guides v/ Ministry of Tourism and others. H.C.J (Bagatz)
441/87. Not published.
13. Israel Association of Tour Guides v/ Ministry of Tourism and others, Further Hearing
27/87. Not published.
14. The Treaty of Rome, signed in Rome on 25.3.1957.
15. Council Directives 68/367 E.E.C. of 15.10.68 (OJ 1968 I, 260/17,
Council Directive 75/368 of 16.6.1975 (OJ 1975 L. 167/22)
Council Directive 89/48 EEC of 21.12.88 (OJ 1989 L 19/16)
Directive 92/51 EEC (OJ 1992 I 209/25)
See also: “European Travel Law” by Jaqub-Bedford, Pag. 22,23.
16. Case C-288/89 Stitching Collective v/Voor de Media (1991, ECR 1-4007 cited by
Yaqub-Bedford” ibidem, pag. 21
17. Art. 59 of the Treaty. See 6.4
18. Commission v/ Italian Republic (1991) ECR- 709
Commission v/ French Republic (1991) ECR 1-659
Commission v/ Hellenic Republic (1991) ECR- 1-727
cited in “European Travel Law” ibidem pag. 22
19. Commission v/ The reign of Spain- c375/92 (1994), ECR 923 cited in “European
Travel Law” ibidem pag. 40.
20. Case c-106/91 Rambath (1992) ECR 1-335. Cited in European Travel Law”
ibidem.
21. Collective Agreement Number 7014/2000 between the New General Confederation of
Workers in Israel- Trade Union Department, and the Israel Association of Tour Guides No. 7014/2000.
21A)Collective Agreements Law. Gazette of Laws 1957 Pag. 63-86
22) Extension Order published in Official Announcements and Advertisements Gazette
(Ialkut
Hapirsumim 2001, Pag 403, Brochure 4934.
23) Tourist Services Law (1976). Gazette of Laws 1976. Pag. 228
24) Arrangements in the Budget of the State (Ammendments of Laws) Gazette of Laws-1999,
psg. 90
25) Ibidem 11 above.
26) Control of Commodities and Services (Identification of Business for the sale of Goods
and
Rendering of Services to Tourists Order- 1967.
27) See Chapter 2 .
28) In Israel: Contracts Law (General Part) 1973. Gazette of Laws 1973- pag. 118
Contracts Law (Remedies for Breach of Contract) 1970. Gazette of Laws 1970 pag. 16.
29) In Israel: Section 34 and 35 of the Civil Wrongs Law (New Text)- 1968. Gazette of
Laws 1968
Pag. 101.
30). In Israel: Section 63 of the Civil Wrongs Law (New Text) ibidem.
31). See also: Winfield and Jolowicz on Torts- 12th. Edition, Pag. 83.
32.) Teddis v/ proprietors of the Bann Reservation (1878) 3 app. cases, 430, 455, by Lord
Bluckburn.
33.) See: 9.3.2
34) See 9.3.3
35) Section 13 Civil Wrong Ordinance (New Version)-1968. Supra 29.
36) Section 15, ibidem.
37) Council Directive 90/314/EEC of 13.6.90 on Package travel, package holidays and
package tours
O.J. No. LI 158, p. 59.
38) Ibidem: Art. 5.2
39) In Irland according to Section 3 of the Package Holidays and Travel Act
(1995) an Organizer can
be any person organizing packages and for this reason, can cover either the Travel
Agent or the
Tour Operator..
In the Neetherlands, Chapter 7A of Book 7 of the Civil Code incorporated as a result of the
E.C.
Directives on Package Tours, introduceds almost strict liability of the Tour
Operator, in relation
to the execution of the Package Tours.
In France: according to the Law of 13.7.92 (Title V; Jo 14.7.93 Pag 9459 the Resposibility
lies
according to most of the writers- on the Travel Agent who is fully liable as
stated in par. 23 of . the Law. In my opinion: in both of them. (See infra)
In the United Kingdom, The Package Travel, Package Holidays and Package
Regulations made on 22.12.92, according to Section 15, the Liability lies on
the
“other party to the Contracto “ and according to Section 2
Interpretation: means
“the parties other than the consumer to the Contract, that is. the organizar
or the
retailer, or both as the case may be”.
In Portugal: The Decree-Law No. 198/93 , 27th. May 1993.
Diario de la
Republica, I Serie A No. 123, Pag. 2904, both the Tour Operator and the Travel
Agency are responsible towards the Consumer.
In Denmark: According to the Package Travel Act No. 472 of June
30th. 1993,
Art. 28 Both the Travel Agent and the Tour Operator are responsible for the
Proper performance of the Contract, but vis a vis the consumer is the Travel
Agent the responsible, and the Travel Agent subrogates the right the tourist
has
against the Tour Operator
See also: Dr. Jose Fosman: “The implementation of the European Union
Directives on Package Tours” submitte to lthe
9th. International
Congress of Iftta, May 1994.- Dublin
Dr. Jose Fosman: Last Developments in Israeli Jurisprudence
regarding the Tour Operator-Travel Agency Responsibility.
Submitted
to the 4th . International Conference of Iftta- Palma
de Mallorca.
43. John Cohen v/ Sociaty for the Protection of Nature in Israel and others. C.A.
(Haifa) 1142/82. District Judgements Reports Book 50 (1) Pag. 400.
44) Sociaty for the Protection of Nature in Israel v/ John Cohen and others. C.A.
452/451/88 High Court Judgments Reports Book 46 (1) Pag. 133.
45) See also: Dr. Jose Fosman “The Law when awarding Damages” Travel Law
Journal. Issue two Pag. 47
trabajos/footnotes/tour guides 21.8.05
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