Collective Commentary about the New Package Travel Directive

ARTICLE 12 | FRANCESCO TORCHIA 291 Particularly, as it relates to this case, the EU legislator has regulated the duty of informationwhereby brochuresmust clearly and precisely indicate the terms, methods and subject against which the right of withdrawal must be executed. In this respect, wemust distinguish between package purchasing and the supply of individual services. This occurs because, as already pointed out by respected law theorists 19 , in recent years there have been a growing number of consumers who use the Internet to book trips, flights, concerts and so on. This has created many problems since, if withdrawal regulations are applicable to package purchasing, the same cannot be said to the purchase of individual services. In fact, the withdrawal from supply contracts for non- -residential housing, car rental services and services concerning leisure activities are clearly excluded if the contract expects a specific date or period of execution. This means that it is possible to withdraw from these contracts by paying a penalty, whose amount is usually established as a part of the contractual terms by the service provider. Article 36, Paragraph 1, Letter 1) of the Tourism Code, also regulates (indicating it with the term of “cancellation of the contract ”) the case of conventional withdrawal of organisers or of the intermediaries for the failure to reach the minimum number of participants. This withdrawal is allowed only if the minimum number of participants was previously and clearly reported inside the travel document. However, the Italian law theory has considered whether, according to Articles 32 ss of theTourismCode, the clause that gives tour operators the right of free withdrawal without charges can be considered valid and effective 20 . There is no doubt that, according to Article 10, Paragraph 1 of the CCV, these clauses were acceptable despite tour operators having less power at a contractual level compared to that of tourists, who in similar circumstances can execute the withdrawal by only paying a penalty. In contrast, the regulation in force has considerably reduced the load on tourists and has extended it to travel package organisers and intermediaries. This is demonstrated by the fact that Article 41 of the Tourism Code, which states that if due to force majeure the organiser or the intermediary cannot complete the originally agreed travel programme, it cannot terminate directly the contract, according to Article1463 of the Civil Code, butmust communicate to the tourist an alternative programme, specifying in a written letter the changes made and the consequent price change. If the tourist does not accept this, he can withdraw without any charges within two days from the communication. In this regard, it is important to note that the right granted to tourists by the Tourism Code is mandatory, meaning that any contrary clause will not be 19 Cfr. R. SANTAGATA, Diritto del Turismo , Turin, 2009, pag. 268. 20 Cfr. C. ALVISI, op. cit. , pag. 209 and on.