Collective Commentary about the New Package Travel Directive

ARTICLE 9 | SARA D’URSO 249 been an increase in protection for the traveller, then one of the objectives of the standard has been reached, it is necessary to understand the ratio of institute and, in particular, its applicability to practical cases. The first question to answer is why a traveller should prefer to assign the contract rather than unilaterally withdraw from it. The answer is economically identifiable: the traveller will choose to transfer the contract when the cost of withdrawal is higher than the cost of the assignment, so normally as the departure date approaches 12 . Indeed, both the Directive 90/314 and 2015/2302 provide the possibility for the consumer to withdraw from the contract by paying a fee for the withdrawal that takes into account, for the calculation of its amount, the moment in which this right is exercised. Article 12 paragraph 1 of the Directive provides that Member States shall ensure that the traveller may terminate the package travel contract at any time before the start of the package. Where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. The package travel contract may specify reasonable standardised termination fees based on the time of the termination of the contract before the start of the package and the expected cost savings and income from alternative deployment of the travel services. In the absence of standardised termination fees, the amount of the termination fee shall correspond to the price of the package minus the cost savings and income from alternative deployment of the travel services. At the traveller’s request the organiser shall provide a justification for the amount of the termination fees 13 . Therefore, if on the one hand the opportunity cost ratio makes the sale preferable when the residual time is lower before departure, on the other hand, as the departure approaches, it compromises the practical ability of the traveller to identify a transferee that meets all the conditions required by the travel contract and who, above all, is prepared to leave at the last minute. Practical feasibility is further compromised whenever the voluntary assignment concerns, for example, an entire family unit or group: what is the probability for a family to find another that replaces it? 12 In this regard, the considerations of Tassoni, Il contratto di viaggio (The package contract) , Milan, 1995, p. 209. 13 For a critical analysis of art. 12, paragraph 1 of the Directive, see Pagliantini, Modifiche anteriori e recesso da un contratto di pacchetto turistico (Previous changes and withdrawal from a tourist package contract), in La nuova disciplina europea dei contratti di viaggio (The new European regulation of travel contracts), ed. by Finessi Napoli, 2017, p.87-89; Torchio, The tourist package contract resolution and right of withdrawal before the package, in Aa.Vv., The new package travel directive , ed. by Franceschelli – Morandi – Torres, Estoril, 2017, p. 168.