Consumer rights protection in contracts for providing tourism services with a foreign element (in the context of the European Union)

The scientific publication examines the issue of consumer rights protection in contracts for the provision of tourism services with a foreign element in the European Union and Ukraine. It is emphasized that consumers of tourism services are in a weaker position compared to tourism companies, thus necessitating a balanced approach to the regulation of such relationships. The publication analyzes the normative definitions and interpretations of the concepts of «consumer» and «consumer contract» in EU law and the case law of the European Court of Human Rights. The innovations of the Rome I Regulation regarding the introduction of specific connecting factors for consumer contracts, which contribute to enhancing their level of protection, are highlighted. Tourists who use package tourism services are classified as consumers (under EU understanding, physical persons who conclude contracts outside the scope of their professional or trade activities for personal purposes) and are granted direct protection under EU law. It is noted that the parties to a contract for the provision of tourism services, as a consumer contract, are permitted to choose the applicable law, provided that such a choice does not deprive the consumer of the protection afforded by the mandatory rules of the consumer’s country of residence. Attention is focused on the targeting of the service provider’s activities in the consumer’s country of habitual residence, which determines the applicable law if no choice is made: in the case of a passive consumer, the law of the consumer’s habitual residence applies, while an active consumer may be subject to the general rules considering the professional party’s location. The court may apply the esare si clause to determine a closer connection of the contract with the law of a particular country. Special attention is given to conflict-of-law rules concerning obligations to compensate for damages caused by the provision of tourism services and to the jurisdiction of disputes arising from the provision of such services. It is emphasized that a choice-of-law or jurisdiction clause included in the contract without individual negotiations is deemed unfair and may be challenged by the consumer as invalid if it creates an imbalance in the rights and obligations of the parties.