Collective Commentary about the New Package Travel Directive

290 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE can be required to pay a penitential deposit payment equal to the entire amount if the withdrawal is made near the departure date. However, the part of the theory which considers these clauses admissible states that tourists unable to leave have to assign the contract to a third party. Therefore, this occurs by sending a written communication to the organiser or to the intermediary within four business days before departure, according to Article 39, Paragraph 1 of the Tourism Code. Furthermore, this type of clause could still be subject to the test of unfairness as per Article 33, Paragraph 2, Letter e) of the Consumer Code, according to which the clauses that allow “the operator to withhold an amount of money paid by the consume r without expecting the consumer’s right to demand from the operator double the amount paid, this if the latter does not comply with the contract or withdraws.” 14 . The aforementioned would be the consequence of a significant imbalance between tourists’ obligations and operators’ rights, which could be excluded only in the presence of a clause that subordinates to a penitential fine for the tourist when the withdrawal of the operator also takes place 15 . This is especially relevant if we consider that the unfairness of a clause cannot be evaluated abstractly, but must always be evaluated taking into account the nature of the goods or the goal of the service contemplated by the contract, according to Article 43 of the Constitutional Code 16 . It is also true that, according to the authoritative doctrine mentioned, the clauses that expect a penitential fee for the execution of the tourists’ right of withdrawal within the scope of the sale of travel package contracts, already find their counterpoint in the obligations that rest on organisers and intermediaries. Even if the travel programme cannot be executed for reasons not attributable to them 17 . Moreover, in case of obvious excessive penalties, the tourist can always ask the judge for a fair reduction according to Article 1384 of the Civil Code. As a consequence, in the aforementioned case the contractual clause withinwhich the organiser or seller reserves the right to withdraw freely is null and void, due to specific features introduced by regulations in force which protect tourists, not for the presumption of an unfair nature as referred to in Article 33, Paragraph 2, Letter e) of the Constitutional Code. The above can be also applied to cases of travel packages purchased on the Internet, or for those contracts negotiated outside of business premises or far from them 18 . 14 Cfr. G. DE NOVA, Clausole vessatorie e contratti turistici , in Contr., 1997, pag. 85. 15 Cfr. G.IUDICA La disciplina delle clausole abusive nel contratto di viaggio , in Resp. Com. impr. , 1997, pag. 63. 16 Cfr. G. ALPA E S. PATTI (edited by), Clausole vessatorie nei contratti del consumatore , in Cod. civ. comm. SCHLESINGER, continued by F.D. BUSNELLI, Milan, 2003. 17 See V. FRANCESCHELLI, Manuale di diritto del turismo , Turin, 2010, pag. 285. 18 On the subject of online sales see E. SIMONINI, La compravendita di pacchetti turistici on-line e l’esclusione del diritto di recesso da parte del turista , in Dir. turismo , 2007, 1, 25.