Collective Commentary about the New Package Travel Directive

294 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE Consequently, in the event of changes imputable to the operator, the legislator can decide to replace the contract termination solution for non-fulfilment with the withdrawal solution. This is a withdrawal with retroactive effect, which gives the right to a full refund, according to Article 1373, Paragraph 2, of the Civil Code. This is not the case if the tourist decides not to continue the trip (Article 41, Paragraph 5 of the TourismCode). In this case, the tourist will only have a reimbursement whose amount equals the difference between service costs foreseen in the contract and the services performed up to the time of the early return. The same applies to the case of travel package cancellation, which is currently regulated by Article 42, Paragraph 1, of the Tourism Code. The legislator forces organisers who cancel the package before departure “for any reason, except for the tourist fault” to offer tourists an alternative package or a reimbursement of the amount of money already paid within seven business days. Here it can clearly be seen that, in this case, the operator does not have a choice, as he is subjected to a law which favours the tourist. In this regard, it is interesting to note how according to a law theory minority the regulation above can recognize a legal event featuring an alternative obligation in favour of creditors 22 . In fact, organisers and intermediaries are bound to the choice of tourists, regardless of the reason for cancellation. Furthermore, the operator will also be required to provide compensation if the cancellation depends on him. 4. INNOVATIVE CAPACITY OF THE DIRECTIVE (EU) 2015/2302 Given the abovementioned situation, the EU legislator has felt the need to intervene with the 2015/2302 directive. Therefore, thanks to the changes introduced by the Lisbon Treaty of December 13, 2007, the tourism industry has also found a clear recognition at a primary legal level. Article 195, Paragraph 1 of the Treaty on the Functioning of the European Union (TFEU) establishes that “the Union is the action of the Member States in the tourism industry, particularly by promoting the competitiveness of EU businesses in it”. As a consequence, the EU legislator felt the need to set as a main goal: “encouraging an environment that promotes the development of companies of this industry” and “promoting the cooperation between Member States, particularly through the exchange of best practices” . For this reason, Paragraph 2 of Article 195 of the TFEU gives the European Parliament and the Council the power to approve “specific” measures. 22 See cfr. A. FLAMINI, op. cit. , Naples, 1999, pag.135 ss.