Collective Commentary about the New Package Travel Directive

ARTICLE 13 | FRANCESCO MORANDI AND CHIARA TINCANI 323 has been revised 6 , allowing for travellers to include their requests (as long as they are accepted by the organiser) 7 , in order to fulfil their leisure needs. Furthermore, a complete regulation has been established concerning the responsibility of the organisers 8 ; who have been given unilateral powers to modify the negotiation 9 and, at the same time, they have been burdened by numerous obligations, such as that of providing suitable guarantees in the event of insolvency 10 . The European legislator has not contemplated a similar discipline for the retailer and dedicates only a few limited references to this subject. For instance, according to art. 5, par. 1, “ Member States shall ensure that, before the traveller is bound by a contract... the organiser and, in the event that ” the package is alienated “ through a retailer, the latter must also provide... the relevant information form. ” More generally, according to art. 15, the traveller can “ send messages, requests or complaints... directly to the retailer through which he purchased ” 11 and the retailer must then forward the requests to the organiser. This choice finds its synthesis in art. 13, par. 1, sub-par. 2, whereby “ Member States may maintain or introduce... provisions based on which the retailer is... responsible for executing the package ”, subject to the provisions of art. 7 and the third, fourth and fifth chapters of the Directive. The Member States define the responsibility of the intermediaries and whether they must also be responsible for the execution of the contract, in which cases and with which regime. The reason is clarified by the twenty-third recital of the motivation. Directive 90/314/CEE 12 had left ample discretion to the European Union countries to establish whether the retailers, the organisers or both were responsible for implementing the negotiation and this flexibility had generated ambiguity in some jurisdictions regarding the identification of the responsible subjects 13 . According to the current directive, the organiser is always 6 Art. 7 of Directive (EU) 2015/2302 . 7 Art. 7, par. 2, lett. a), of Directive (EU) 2015/2302 . 8 Art. 13 of Directive (EU) 2015/2302 . 9 Artt. 9-11 of Directive (EU) 2015/2302 . 10 Artt. 17-19 of Directive (EU) 2015/2302 . 11 Art. 15, par, 1, of Directive (EU) 2015/2302. 12 See S. Zunarelli, La direttiva Cee n. 90/314 del 13 giugno 1990 concernente i viaggi, le vacanze ‘tutto compreso’, in Dir. trasp., 1994, p. 69; V. Franceschelli, La fruizione dei servizi turistici nell’ambito della politica comunitaria, in Turismo: industria strategica del nuovo millennio, ASTOI, Milano, 1997, p. 30; G. Silingardi – F. Morandi, La vendita di pacchetti turistici, Giappichelli, Torino, 1998, p. 45; G. Tassoni, Il contratto di viaggio , Giuffrè, Milano, 1998, p. 235. 13 Recital 20 of Directive (EU) 2015/2302 .