Collective Commentary about the New Package Travel Directive

ARTICLE 9 | SARA D’URSO 253 Indeed, article 7 paragraph 2 provides that the package travel contract or confirmation of the contract shall set out the full content of the agreement, which shall include all the information referred to in points (a) to (h). Point (h) specifically refers the transfer of the contract. The law requires, in fact, that the contract must contain the information on the traveller’s right to transfer the contract to another contract traveller in accordance with article 9. Paragraph 3 says that with reference to packages, as defined in point (b)(v) of point 2 of Article 3, the trader to whom the data is transmitted shall inform the organiser of the conclusion of the contract leading to the creation of a package. The trader shall provide the organiser with the necessary information to comply with his obligations as an organiser. As soon as the organiser is informed that a package has been created, the organiser shall provide to the traveller the information referred to in points (a) to (h) of paragraph 2 on a durable medium. Finally, paragraph 4 states that the information referred to in paragraphs 2 and 3 shall be provided in a clear, comprehensible and prominent manner. The combined provisions of Article 7 and Article 9 guarantee to the traveller the right to be informed, establishing an obligation for the tour operator already at the pre-contractual stage to inform the potential contractor of the ownership of the right to transfer the contract, as well as the amount for replacement costs, otherwise the assignment will have to be considered free. The principle of information protection permeates all Community law and was already widely applied in Directive 90/314, to the point of giving space to the c.d. principle of the “informative” form, which the prevailing Italian doctrine and jurisprudence has been in favour of 24 . In fact, this did not attribute to the written form, required for the contract, a substantial or probative function, simply lending it a function of guarantee in favour of the consumer, regarding the provision of information on both the pre-contractual and contractual levels. On the one hand, the legislator is concerned that the traveller is always properly informed, even in terms of the right to transfer, placing as mandatory in the pre-contractual and contractual content information about the transfer right and its actual costs (of which the tour operator is required to give proof ) 25 ; 24 Among others see: Pagliantini, La riforma del codice del consumo ai sensi del d. lgs 21/2014: una rivisitazione (con effetto paralizzante per i consumatori e le imprese?) (The reform of the consumer code pursuant to d. lgs 21/2014: a review (with a paralyzing effect for consumers and businesses?), in Contratti, 8-9, 2014, p. 808; Romeo, Sub art. 35 cod. tur., in Commentario breve al diritto dei consumatori G. de Cristofaro – A. Zaccaria (Short commentary on consumer rights Cristofaro – Zaccaria) , ed. by Cian – Trabucchi, Padova, 2013, p. 1438. 25 These costs include commission, charge or other costs.