From the articles of DL 62-A / 2020, of 3 September, article 6 should be emphasized:
Article 3 of Decree-Law no. 17/2020, of 23 April is revoked. ”
Now, the device referred to in the diploma in this step stated the measures adopted in clear affront to the legal order of the European Union, namely:
“Travel organized by travel and tourism agencies, the date of which takes place between the period of March 13, 2020 to September 30, 2020, which are not made or which are canceled due to a fact attributable to the outbreak of the disease pandemic COVID-19, grant, exceptionally and temporarily, the right of travelers to choose:
– By issuing a voucher of equal value to the payment made by the traveler and valid until December 31, 2021; or
– By rescheduling the trip until December 31, 2021.
The voucher is issued to the bearer and is transferable by mere tradition.
If not used by December 31, 2021, the traveler is entitled to a refund within 14 days. ”
(If, however, the holder of the reservation finds himself unemployed, the refund of the price paid will be the solution provided by law.)
The condensed measures in this regard were strongly challenged by the apDC, although other institutions had applauded it both hands, to the detriment of consumers.
It has always been understood in this House that what was legislated by the European Parliament and which was in force in Portugal was dead because of the transposition of the Directive of 25 November 2015 into a legal diploma of 8 March 2018 (DL 17 / 2018).
And, in that, the European Commission that had left on 18 March, first, and on 13 May, later, a warning and a recommendation respectively, absolutely agreed with the position that the apDC had taken: the measures adopted by Portugal were not conform to European law. It would be interesting if Portugal retracted and refunded its violated rights to its nationals (or to those of other Member States that had acquired tourist packages in Portugal), that is, the refund in cash (or by other means of payment) of the amounts paid by consumers. Without prejudice to the rescheduling of trips and the issuing of vouchers, always and only as a consumer option, which is not imposed, and even less protected by law.
The Portuguese Government, in the alleged justifications it had brought to Brussels, blatantly lacked the truth when it added that the measures had been adopted with the agreement of a large majority of consumers. Which is completely false.
The announcement of legislation that would take into account the positions of Brussels, moreover, reiterated in various opportunities, rested all.
“Cash refunds for travel would be made within 14 days following the entry into force of the decree-law”.
Another falsehood on the horizon.
Indeed, the diploma that came to light (DL 62-A / 2020, of 3 September) revokes the exceptional and temporary regime. But its effects remain. Against what Brussels had intended. This is stated in the preamble, which defines the following:
“The Government understands that the solution provided for in Decree-Law no. 17/2020, of 23 April, which allowed, in the event of cancellation or failure to make the trip for reasons associated with the COVID-19 disease pandemic, the issuance of a voucher of equal value to the payment made by the traveler or the rescheduling of the trip, seemed to be truly exceptional and was intended to respond to a specific context of “massive” travel cancellation with the agencies, which does not occur at the present moment.
Thus, without prejudice to vouchers already issued and trips meanwhile rescheduled under the exceptional and temporary regime, it is important to readjust the legal regime for organized trips. ”
Hypocrisy in form. And disloyalty towards the European Commission for Portugal’s failure to comply with the texts of the European Parliament and the Council. Greater burden for consumers who, despite the issuance of tax vouchers, always understood that – in view of this setback – they would be entitled to an immediate refund (in the 14 days announced).
Pure illusion! Whoever accepted the vouchers (if they don’t use them in the meantime) will only redeem them in January 2022.
This allows us to go back to what the apDC, in very well-reasoned writing by its vice-president, Prof. Dr. Susana Almeida, recently published and whose conclusions follow:
1.The solutions of European Union law prevail over those of national law
(The traveler has the right to [extinção] contract with immediate full refund of payments made).
2.The direct effect of the Directive
(While the Directive is an act for the Member States and needs to be transposed, the Court of Justice of the European Union (CJEU) has ruled in terms of the Directive to have direct effect when unconditional and sufficiently clear and precise its rules , how is the case.)
3.The referee as a judge of European Union law
(According to the CJEU’s understanding, the necessary arbitral tribunal is considered to be a judicial body within the meaning of Article 267 TFEU, being able to apply the Directive directly for the reasons given).
The victims of such a bizarre legislative process, let them not stay: swarm the arbitral tribunals, claim the deprecated rights, bring the State to justice in its proper place.