Collective Commentary about the New Package Travel Directive

ARTICLE 11 | CHIARA TINCANI 273 right to exercise it must have been explicitly stated in a clause. According to art. 40, second paragraph, the occurrence of events that are outside the control of the company makes it possible to operate on substantial elements. The core point of articles 39 and 40 is the interpretation of the concept of “resolution” of articles 10 and 11 of the Directive and, despite their literal rendition in the Italian text, the decree opts for an idea of withdrawal 18 quite different from the “termination” in our law, emphasises the traveller’s complete freedom and need of a simple contract statement, with immediate binding effects, without any need for the courts to intervene. The choice is correct and supported by a coherent reconstruction of the community institution, so that the misunderstandings, however unjustified, that could have been produced if the expression “termination” 19 was used can be avoided. Instead, art. 40 of the decree does not attribute an univocal value to the silence of the traveller, considering the information provided in art. 11 (3), and does not accept the request of this latest provision. In our legal system, in the relationships between individuals there is no general principle on the implications that can be inferred from silence and art. 40, third paragraph, lett. c), does not take a position even in this case, underlining how the organiser should clarify the consequences of the lack of response. If they are specified in the contract, then there is no problem at all. If they are not specified then, if we correctly interpret art. 40, third paragraph, lett. c), the company can set the meaning of these conditions in the same moment it communicates the substantial changes, because this is allowed by art. 40, third paragraph, lett. c). But, if this solution is legitimate from the EU point of view, it puts the organiser in a position of strength, following the global trend of laws and regulations in this sector. Whenever the company exercises the ius variandi , even in the absence of a previous clause, it can unilaterally establish the “effects” of the traveller’s silence 20 . The decree does not take a position on the notion of substantial modification and should not have done so, because the concept was already defined by art. 11 of the Directive. All the transformations that affect the main features of the services are significant 21 . The significant variations are those that pertain to the destination, the date of departure or return, means of transportation, itineraries, visits or excursions, but the law translates the European one, without adding 18 See art. 39, third paragraph and art. 40, second paragraph, of the legislative decree no. 62 of 2018. 19 See articles 10, second paragraph, and 11, second paragraph, lett. b) of Directive 2015/2302/EU. 20 See art. 40, third paragraph, letter c), of the legislative decree no. 62 of 2018. 21 This can be inferred from the reference to art. 34, first paragraph, lett. a), provided for by art. 40, second paragraph, of the legislative decree no. 62 of 2018.