Collective Commentary about the New Package Travel Directive

ARTICLE 9 | SARA D’URSO 251 One of these is the establishment on the seventh day before the departure as the maximum period within which the traveller can communicate the transfer to the tour operator; a term evidently in favour of the professional, which in the previous rule was generically indicated as a “reasonable time”. The principle of reasonableness occurs in the previous and in the current directive on several occasions (in article 9 on the second paragraph: reference is still made to the reasonableness of the costs that the tour operator must incur for the sale). However, as regards the transfer, the European legislator prefers to clarify what is meant by reasonable time and stipulates it as the seventh day before departure, probably to avoid incurring subjective assessments that could somehow put in disadvantage one of the contracting parties, making the transfer impractical 17 . The Italian legislator was of the same opinion regarding the implementation of the dir. 90/314/EEC with article 10 of the d. lgs. 111 of 1995 18 , which had set a maximum term of 4 days before the departure, within which the communication of the assignment would have to proceed. So, at least for the Italian market, the introduction of a maximum time of 7 days (mandatory by the legislators of the Member States), favours all those organisers who have always considered the term of 4 days, granted by the internal rules, too short to make changes to contracts with suppliers, especially in the case of group sales 19 . 17 The principle of reasonableness occurs several times in the directive, twice in art.9: Art. 9.1 The traveller shall give reasonable notice on a durable medium before the start of the package…seven days before the start of the package shall in any event be deemed to be reasonable. Art. 9.3 The actual costs of the transfer shall not be unreasonable and shall not exceed the actual cost incurred by the organiser. Art. 11.2 Referring to the case in which the organiser is constrained to alter significantly any of the main characteristics of the travel services, he must define a reasonable period in which the traveller must communicate his choice. Art. 13.4 Art. 13.6 In case the organiser does not remedy the lack of conformity within a reasonable period set by the traveller. Art. 16 Referring to obligation to provide assistance, the organiser shall be able to charge a reasonable fee for such assistance if the difficulty is caused intentionally by the traveller or through the traveller’s negligence . On the issues related to the principle of good faith and reasonableness see Navarretta, Good faith and reasonableness in European contract law, in iuscivile.it, 2, 2013, p. 121. See also: Biondi, The role of reason and national procedural limitations: Is it really reasonable?, in Rule of reason: rethinking another classic of European legal doctrine, Ed. Schrauwen , 2005, p. 41; Rossi – Curzon, “Rule of reason” for the EU internal market, DUE, 2008, p. 295; Alvisi, The reasonable consumer under European and Italian regulations on unfair business – to – consumer commercial practises, in Reasonableness and law, ed. by Bongiovanni – Sartori – Valentini, Springer, 2009. 18 Then transfused in decree 23 May 2011, n. 79 art. 39. 19 Plausible hypothesis in the case of family travel, in which the renunciation of a subject often involves the renunciation of all the other members.