Collective Commentary about the New Package Travel Directive

ARTICLE 11 | CHIARA TINCANI 271 or superior quality. It is a way more complex matter to establish what is meant by acceptance of the modification by the traveller, pursuant to art. 11, paragraph 2, letter a). In addition to that, considering the justification of the Directive 8 , it is preferable to attribute unilateral nature to the power of the company, pursuant to art. 11, paragraph 2. The reference to acceptance is pleonastic, because the only alternative is the withdrawal and, if the traveller does not choose it, he/she shall accept and “be inflicted” the substantial changes occurred, even if his/her will does not coincide with that of the organiser, leaving the traveller in a weaker, passive position. According to art. 11 (3), the organiser must disclose, without undue delay and in a clear, comprehensible and prominent manner on a durable medium the changes regulated by paragraph 2, their possible impact on the travel fee, the period within which the traveller must respond and the consequences of its non- -reply in accordance with national law, in addition to the possible offer of an alternative package and the corresponding fee. National laws decide on the effect of silence (non-reply) 9 that is, whether it shall be regarded as a withdrawal or the other way round, that is the acceptance of the change in the substantial characteristics of the services. It is understandable that EU law does not focus on the effects of non-reply, if only because the organiser must draw the consumer’s attention to this aspect complying with a specific obligation to inform pursuant to art. 11, paragraph 3. Therefore, the room for manoeuvring of national law is limited, as regards art. 11, paragraph 3, without significant impact either on the protection of the tourist or on the company’s profit expectations. The consumer is informed of the implications of silence and has no need to research and educate themselves on the matter. The consequences of the withdrawal are established by art. 11, paragraph 5, regarding the refund of the consideration, without prejudice to the possibility of the offer and acceptance of a replacement package, pursuant to art. 11, paragraph 2, with the signing of a new contract. However, if the offer is a lower quality one, the traveller is entitled to a price reduction, according to art. 11, paragraph 4, while the mutual criterion does not apply in the unlikely event that services are offered with a higher fee. While changes in substantial characteristics may result in lower economic value, this cannot happen due to the minor changes envisaged by art. 11, paragraph 1. Should the exercise of the power under art. 11, paragraph 8 See Directive 2015/2302/EU, 33rd whereas clause. 9 See art. 11, third paragraph, lett. c) of the Directive 2015/2302/EU.