Collective Commentary about the New Package Travel Directive

ARTICLE 13 | FRANCESCO MORANDI AND CHIARA TINCANI 335 This implies, above all, pursuant to art. 1719 of the Civil Code, that the traveller is obliged to provide the retailer with the necessary means for the execution of the mandate and – if the travel agent takes on the obligation, towards the organiser, of the payment of the fee and the cancellation penalties for the trip under the intermediate travel contract – the traveller is required to reimburse the funds advanced to provide for such payments 37 . This solution is entirely consistent with the provisions established by art. 42, par. 2, of the Tourism Code, which allows the traveller to challenge the organiser for any lack of conformity, detected during the execution of a service provided by the package travel contract, “directly or through the retailer”. The same meaning is also covered by art. 44, par. 1, of the Tourism Code which, in implementing art. 15 of the Directive (EU) 2015/2302, establishes how the traveller (principal) is entitled to contact the organiser via the retailer (agent), addressing messages, requests or complaints relating to the execution of the package. However, in this regard, it should be noted that, for the purposes of compliance with the terms or periods of limitation, the date on which the retailer receives messages, requests or complaints relating to the services provided by the organiser is considered the date of receipt for the latter as well. This provision reconciles, not without a certain difficulty, attributing to the retailer the quality of the agent and rather seems to reflect a configuration of the travel agent position, substantially symmetrical, to that which the organiser of the package travel takes on with respect to the user of the service 38 . The provisions regarding the intermediate travel contract essentially relate to four distinct profiles: the identification of the obligations borne by the retailer; the liability regime in the event of contractual non-fulfilment; the compensation obligation; the expiry time-limits of the right to compensation for damages. Once the relationship between traveller and retailer as “intermediate travel contract” has been identified, the Tourism Code establishes certain specific travel agent obligations, which follow the mandate given by the user. 37 In jurisprudence, it has intervened, definitively, Cass. civ., Sez. III, 20 September 2002, No. 16868, in Dir. tur ., 2003, p. 349, with a comment by A. Corrado, Il turista deve rimborsare all’agenzia di viaggi la penale anticipata al tour operator . 38 The provision seems to resent of the different configuration of the relationship between traveller and retailer adopted in other Member States of the European Union, in which a system of joint liability exists between the retailer and the organiser of the package travel. Circumstance that also explains the reserve clause contained in the opening of art. 15 of Directive (EU) 2015/2302, where it is without prejudice to what established by the following art. 13, par. 1, comma 2, of the Directive.