Collective Commentary about the New Package Travel Directive

ARTICLE 12 | FRANCESCO TORCHIA 293 to avoid this is bynot foreseeing at all a pricemodification in the contract. Furthermore, the law sets a limit for the validity of fee review clauses, which will be void if the intention is to bypass mandatory limits. Moreover, within twenty days before departure, organisers and intermediaries are not allowed to use the general plea according to Article 1467, Paragraph 2 of the Italian Civil Code, also known as termination of the contract due to overcharging costs. This happens because it is known that the resolution cannot be demanded if the unexpected amount is within the normal level of the contract. Considering what has been said above, with the introduction of theTourismCode the Italian legislator has derogated (improving it) from the Code System, considered to be less favourable to tourists. But this only happens in reference to the regulation of Article 1467. According to the regulation in Article 1664 of the Civil Code, it would seem that the tourist has fewer guarantees than the customer in contractual terms, to whom Article 1671 of the Civil Code recognizes the right to withdrawwithout charges. Even in cases where the work execution or the service supply has already started, as long as it keeps the contractor free of all expenses incurred, of the work performed and of the profit lost. Furthermore, the organiser and the intermediary, according to the legislation in force, do not incur in a contractual responsibility in the event of a substantial change, which depends on their subjective inability. This occurs if the tourist accepts the conditions after being promptly informed by a written communication. In this regard, we should remember that according to part of the law theory the information that the organiser or intermediary must provide cannot be qualified as a proposal for a contractual amendment, since the law regulates “a true unilateral change of the contract” 21 . In contrast, the tourist which (promptly informed) does not accept the change and withdraws will be able to proceed and obtain a compensation due to a non-fulfilment of the contract. In response to the power of unilateral change, the Italian legislator has foreseen with Article 40, Paragraph 3, and with Article 41, Paragraphs 2, 3 and 5 of the Tourism Code, the tourists’ right to unilaterally terminate the contract. This right must be executed within seven business days (Article 42, Paragraph 1) and, additionally, the tourist has the power to request a refund of the entire amount paid, without paying any charge. Otherwise, the tourist can request an alternative package. If the package modification is not due to force majeure, the organiser or the intermediary is instead charged with the obligation to refund any further damage derived from the non-fulfilment of the contract. 21 See G. TASSONI, Il contratto di viaggio , Milan, 1998, pag. 233 and next.