Collective Commentary about the New Package Travel Directive

106 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE If we have to define marriage, we traditionally quote Modestino D. 23,2,1: “ nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani juris communicatio ”. ‘Property’, in the Code, is referred not in on itself but indicating the powers of the owner. Article 832 of the Italian Civil Code does not give a definition of ownership, so it describes the powers of the owner, who has the right to enjoy and dispose of things in a full and exclusive way. If we have to define ‘obligation’ – Obligation gives the name to Book Four of the Italian Civil Code – we quote Giustiniano, Liber 3°, Tit. XIII – “ obligatio est juris vinculum quo necessitate adstringimur alicuius solvendae rei secundum nostrae civitatis iura ”. There are various reasons why the law does not use definitions. In some cases, an institute is so deeply engraved in the system, that a definition is unnecessary. Everybody knows what marriage or property is. However, the main reason is that a definition is a cage that limits the rule; it fixes limits; fixing limits is inelastic; and an inelastic rule of law can soon become obsolete. In other cases, the legislator does not want to frame a concept, leaving to case law the task to define the content of the rule. 1.1. The Imperative Force of a Definition Scholars have also discussed the imperative force of a definition; some give them a certain value; some deny their imperative value. This limitative approach changes when the legislators issue laws in new sectors of human life. At this point, the legislator has to use a common word – like ‘package’, for example – and vest it with a juridical meaning In this case, “legal definitions serve a very important purpose. They are different from descriptions or explanations. Their purpose is to identify the particular meaning of a term within a certain legal framework”. And therefore: “anything which falls within the definition is covered by the particular meaning of the term within the respective law. And anything which does not fall within the definition is not covered by the meaning of the term”. 1.2. Preambles, Recitals and Definitions in EU Law In EU Law, we find Definitions and Recitals. The latter, also known as Preambles – those countless ‘ whereas ’ that we find at the opening of a Regulation or of a Directive –, are often taken into account by the EU courts when interpreting the main text of a Directive or a Regulation.