Regarding frequent passenger objections demonstrating dissatisfaction with the delays of flights that are part of package tour, we inform you of the following:
Applicable law: The Law on Obligations and the Basic of Property Relations in Air Transport (“Official Gazette RS” No 87/11 and 66/15). The provisions of Regulation EC 261/04 and the Montreal Convention have been implemented in this Law. The Law defines property relations in air transport more closely, and the provisions of Articles of the Law are not in collision with the Montreal Convention which is in the higher level of hierarchy of legal acts.
Tourist agency files an application at the air carrier for charter air transport for a specified destination and period of time;
Air carrier provides positive/negative response regarding requested carriage. When the response is positive, an Agreement on lease of aircraft is made between the tourist agency and the operater;
Passenger pays the tourist agency the total amount of money for package tour.
In case of damage sustained during transport, passenger addresses the tourist agency in accordance with their obligation relation, and the tourist agency addresses the air carrier- as referred to in Article 21 of The Law on Obligations and the Basic of Property Relations in Air Transport.
Passenger has not bought plane ticket from air carrier, and the whole capacity of aircraft has been given at disposal to orderer of carriage (the tourist agency) for contracted charge.
Tourist agencies refer to the Montreal Convention which defines that air carrier is obliged to provide compensation due to delay. As the Convention defined the term “delay” generally speaking, the European Parliament adopted Regulation (EC) 261/04 dealing with this topic in a more detailed manner (the Regulation defines meaning of long delay, timeframes and rules for compensation). The national law set forth obligations in air transport in details, by implementing provisions of both the Montreal Convention and EC 261/64. In case of damage caused by delay, according to the Montreal Convention, the liability of the carrier for each passenger is limited to 4150 Special Drawing Rights, and the real value is designated by the court based on the evidence provided.
Therefore, in accordance with the applicable regulations, recomended practice and harmonisation of national legislation with the EU acquis, in your case, tour operator is liable for all irregularities regarding services included in package tour, and the tour operator will protect the rights by the Contract signed with the third party inside the Service. Insight in the contract between Tourist Agency and third party (e.g. air carrier) when providing tour package may be provided to national authority that monitors work of tourist agencies.
Delay of flight:
The provisions of Article 11 of the The Law on Obligations and the Basic of Property Relations in Air Transport (“Official Gazette RS” No 87/11 and 66/15) sets forth the meaning of the term “delay”. The right to compensation is set forth by the provisions of the Article 12 of the Law, under the condition there was reference to this Article in the Law (in case of delay there is no such reference).
The Law has not stipulated the right of compensation for a passenger in case of delay of flight in accordance with the transposed Regulation EC No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, that is transposed in national law, in its entirety.
The compensation that passengers expect to receive depends on the flight length (EUR 250, EUR 400, EUR 600) with reference to jurisprudence of EU that equals delay of flight longer than 3 hours to cancellation. As most segments of charter air transport are flights betwen the countries other than EU members, jurisprudence of EU has no legal effect and it is not leagally binding for carriers. Jurisprudence of the EU has no legally binding effect in the Republic of Serbia. Immediately upon amendments are made to EC Regulation, national laws shall comply with the respective amendments. At the moment, compliance of the national and EU regulations as regards passenger rights in air transport is full.
For instance, let us consider that the flight covered by the package tour has evidently been delayed. Compensation in case of delay has not been laid down by the Law (neither by the EC 261/04). In case the damage was incurred on you due to delay of flight (shorter stay at the destination), you should address orderer of carriage since the agreement was made between you and the said orderer.
Irrespective of that, and in accordance with Article 97 of the Law, passenger may protect his/her rights by filing a complaint at the competent court.
Package tour is a pre-defined set of services obliging tour operator to supply to passenger at least two services covering transport, accommodation or other tourist services as a whole and provided in a period of time longer than 24 h or include at least one overnight stay, and the passenger is obliged to pay for the services one total (lump-sum) price;
The other Law and regulations that might be used in cases related to “package tour”:
Paragraph of the Consumer Protection Law
Article 102
The organiser is responsible for the conformity of service, including services provided to passenger by a third party (providers of transport, lodging, nutrition, other services in tourism, as well as entertaining, or cultural, sports or other programmes for leisure).
Article with reference to EU document: Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on on package travel and linked travel arrangements
PERFORMANCE OF THE PACKAGE TOUR
Article 13
The organiser is responsible for the performance of the travel services included in the package travel contract, irrespective of whether those services are to be performed by the organiser or by other travel service providers.