Collective Commentary about the New Package Travel Directive

262 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE States to introduce more favourable principles to tourists 21 is quite surprising as it does not allow national law systems to contribute in any way 22 with provision based on applicable experiences and on the best knowledge of consumers’ needs, taking also into account the law doctrine indications and criteria provided by each country. In addition, since the law of tourism is much more articulated and, at least in Italy, gives greater prominence to the protection of travellers 23 , this absolute imperfectness of the Community provisions with respect to national law causes disharmony, that has to be accepted. 2. THE IUS VARIANDI AND THE NEW REGULATIONS ON PRICE REVIEW The modification of the consideration is subject to unilateral power, with a dissonance from the general principles of the Italian legal system, and not only from that, so that, once the agreement is entered into, the conditions can be transformed only by consensus. There are other examples of similar powers, often in Italy called with the Latin expression ius variandi , to which I shall also refer to in this case. For the most part, for example in the matter of subordinate employment, a similar power presupposes either the extension of the negotiating effects over time or a significant interval between the signing and execution of the contract. This is the case of art. 10, because the agreement can be reached long before the start of the travel and some factors are considered to have an effect on the economic outlook of the organiser, and may even lead to a rebalancing. In Italy, at the very least, contract law in general provides for the resolution due to excessive onerousness (excess of costs) 24 , and similar solutions are found in various 21 See art. 4 of Directive 2015/2302/EU . 22 This option for complete harmonisation was already in the preparatory works. See Keiler – Morandi, Package travel and assisted travel arrangements: the proposal for a new directive in the light of a possible full harmonisation approach”, in Riv. it. dir. tur., 2014, 5 and following; Serrat, An overview of the proposal for a new package travel directive, in IFTTA law review, 2014, 2 and following. 23 See D’Urso, Il contratto di trasporto turistico ( The tourist transport contract ), in Aa. Vv., Trasporti e turismo. Profili privatistici, (Transports and tourism: private law profiles), ed. by Vignali, Milano, 2016, 19 and following; Malagoli, Il nuovo codice del turismo: contenuti e garanzie ( The new tourism code: content and warranties ), in Contr. impr. eur., 2011, 813 and following.; M. LA Torre, Riflessioni sul codice della normativa statale e mercato del turismo ( Reflections on the code of state legislation and tourism market ), in Riv. sc. tur., 2011, 41 and following . 24 See Bianca, Diritto civile. La responsabilità ( Civil Law, the responsibility ), Milan, 1994, vol. 5, 384 and following; Scalfi, Risoluzione del contratto, I (Contract resolution, I), in Enc. giur., vol. XXVII, 1 and following (of the extract); Tartaglia, Onerosità eccessiva (Excessive onerousness), in Enc. dir., vol. XXX, 155 and following; Gabrielli, Alea e rischio nel contratto (Chance and risk in the contract), Naples, 1998, 45 and following.