Collective Commentary about the New Package Travel Directive

ARTICLE 13 | FRANCESCO MORANDI AND CHIARA TINCANI 341 national traditions over the creation of a common discipline, which to date, in fact, is not recognisable 52 . Some Member States have extended the regulations regarding the organiser to the retailer as well, without substantial changes 53 . Spain was more cautious 54 , by expressly assigning to the interpreter the task of assessing whether, and to what extent, to consider the different situations. On the contrary, Germany and Italy have preferred a distinct regulation. In expressing an evaluation of merit between these two different systems, the second model appears to be more reasonable, because intermediation and organization express different economic functions. This should also emerge in a corresponding differentiation of the discipline, which cannot be the same, unless the retailers are obliged to take on extraneous obligations with respect to their commercial role. However, the problem is more complex and concerns the original layout established by Directive (EU) 2015/2302, which seems to have underestimated the importance of intermediation and its impact on the overall tourism market. Ultimately, a binding regulation for all the EU Member States would have been more appropriate, albeit careful to enhance the differential traits with respect to travel arrangements. It could be argued that this conclusion is essentially in favour of the tradition of German and Italian law, but the median solution chosen in the European Union has certainly not helped legal certainty and has rendered the picture particularly muddled, without full justification for this submissive strategy. In conclusion, the rules regarding the responsibility of the package travel retailer betray the logic of the intervention sought after by the European Parliament and the Council, aimed at overcoming the fragmentation judged to be supranational. The objective of ensuring a high level of protection for travellers, a harmonized balance of the interests of the parties, increasing the transparency of the regulatory framework and strengthening legal certainty for users and businesses in the sector, remains to be achieved. The new regulation of package travel contracts and linked travel arrangements is now called upon to measure itself against the reality of commercial traffic, both nationally and, above all, in the context of the European Union, as well as 52 Art. 13, par. 1, comma 2, of Directive (EU) 2015/2302, cit. 53 See for France, Order No. 2017 – 1717 of 20 December 2017; for Portugal, Decree 8 March 2018, No. 17; for Greece, Decree 29 January 2018, No. 12. 54 See Royal Decree 21 December 2018, No. 23.