Not long ago, the market was actively discussing the news regarding the bringing of the agency "Rainbow Travel" to administrative responsibility for the inclusion of a paid consultation in the contract for the sale of a tourist product. Considering the fact that retail representatives are increasingly and more often work with their clients in this format, the editorial board of TRN turned to the head of the law firm "Bayborodin and Partners" with a request to tell about whether paid consultations are legal.
So what? anyway happened?
As Aleksandr Bayborodin explained, a tourist dissatisfied with the paid service contacted Rospotrebnadzor, after which the agency conducted an inspection. As a result, the company was held liable under Article 14.8 of the Code of Administrative Offenses of the Russian Federation "inclusion in the contract of conditions that infringe on the rights of the consumer." Disagreeing with the decision of Rospotrebnadzor, the agency appealed the fine in court. However, in the end, the court sided with the state agency, leaving the ruling in force and "legalizing" the fine.
What did the court find the agent guilty of?
Let us turn to the text of the court ruling:
By virtue of Article 10 of the Law on the Protection of Consumer Rights, paragraph 7 of Rules No. 452, the contractor is obliged to promptly provide the consumer with the necessary and reliable information about the tourist product, ensuring the possibility of its correct choice. In this regard, charging an additional fee from the customer for the provision of information services by the agency contradicts Article 1 of Law No. 132, Article 32 of the Law on the Protection of Consumer Rights, Article 782 of the Civil Code of the Russian Federation, since the activity of a travel agency consists directly in providing information that allows consumers to make the right choice of a tourist product. In addition, this clause of the contract violates the consumer's right to refuse its execution at any time, subject to payment of the actual expenses incurred by the contractor related to the fulfillment of obligations under the contract.
According to Alexander Bayborodin, the court concluded that the agent had no right to charge the tourist an additional fee for providing information services, since the agent is already obliged to provide such services to the tourist by law. In addition, the court pointed out that the information services were imposed on the consumer - that is, it was impossible to purchase a tour without ordering consulting services.
"Indeed, by law, an agent is obliged to provide the tourist with the necessary and reliable information about the tourist product being sold. Of course, the agent should not and cannot charge a fee for providing such information. It is also true that paid services for providing information should not be forcibly imposed on the consumer. And the court is right in this," the lawyer emphasized.
Are paid consultations now prohibited?
According to Alexander Bayborodin, everything is not so bad, and as they say, “the devil is in the details.”
"First of all, I would like to reassure agents - there is currently no ban on paid consultations as such, and it is unlikely to be in the foreseeable future. No law stipulates the agent's obligation to "scan" tour operator websites for free day and night for the availability of a tour that meets the specific needs of a tourist. Moreover, there is no obligation to do this BEFORE concluding an agreement on the sale of a tourist product. Fortunately, we do not have serfdom or communism, so any work must be paid for. The issue is rather in the correct execution of these relations. The agent made a number of mistakes when drawing up the documents, which led to the imposition of a fine. In my opinion, the reason for the fine was not the paid consultations themselves as such, but the unfortunate wording," the expert is sure.
What mistakes were made by the agent and how to avoid them?
According to the expert, there are two serious mistakes here. Firstly, according to the agent's agreement, the tourist could not refuse the paid service of providing information. Secondly, the agent charged a fee not only for selecting tourist products, but also for providing mandatory information about the product itself, and this is illegal.
In order to avoid claims from regulatory authorities, the company "Bayborodin and Partners" recommends that agents:
- Ideally, conclude a separate contract with the tourist for consulting services, formalize the provision of such services with an act. This method of formalizing paid consultations is generally safer than including a clause on the provision of paid consultation in the contract for the sale of a tourist product.
- Specify in the contract for consulting services (or in the clause on consulting services, if such a clause is included in the text of the contract for the sale of a tourist product) the voluntary nature of ordering consulting services and the possibility for the tourist to refuse such services without any adverse consequences for the tourist.
- Indicate in the text of the document the fact that the payment is charged by the agent for the provision of additional information or additional services, and not for the mandatory information and mandatory services, the provision of which is already mandatory by law.
"Let us remind you once again that, according to the law, a travel agent is obliged to provide a tourist with the necessary and reliable information about a specific tourist product when concluding a contract for the sale of a tourist product. That is, to provide all the necessary information about the hotel, flight, excursions that the tourist intends to purchase. Searching for and comparing several similar options, selected in the course of painstaking work for specific specific requests of the tourist, compiling and sending the tourist a selection of various price offers, consultations and correspondence BEFORE concluding a contract for the sale of a tourist product - all these services are not required by law from the travel agent, and therefore can be provided by the travel agent for an additional fee," concluded Alexander Bayborodin.
Let us recall that earlier, lawyers from the company "Bayborodin and Partners" told the TRN portal about the types of so-called "consumer extremism" from clients that travel agencies have to deal with (more details: https://www.trn-news.ru/articles/95101).
Source: trn-news.ru