Collective Commentary about the New Package Travel Directive

ARTICLE 13 | FRANCESCO MORANDI AND CHIARA TINCANI 337 Unlike the solution adopted in other European Union Member Countries, the domestic legislator has provided for a retailer’s liability regime that is formally distinct and structurally differentiated with respect to the package travel organiser 40 . The travel agent is liable to the traveller, essentially for the violation of the obligations contractually taken on when stipulating the intermediate travel contract. The contract that bonds the traveller and the retailer is expressly considered as an independent intermediate travel contract, whereby the travel agent is liable to the traveller on the basis of the rules established by the mandate, since the fulfilment of the obligations taken on must be assessed, with regard to the diligence required, by the service of the corresponding professional activity. The contractual responsibility of the retailer, therefore, derives from the non- -fulfilment of the mandate, given to him by his client and does not instead pertain to the exact fulfilment of the package travel provided by the organiser 41 . In other words, a specific regulation has been introduced regarding the liability for non-fulfilment towards the traveller by the travel organiser or the retailer, distinguishing the respective contractual responsibilities according to the substantial diversity of the stipulated contracts, the obligations agreed upon and the economic services carried out by the tour operator and travel agent 42 . As a result, the retailer is not responsible, towards the consumer, for the breach by the tour operator, nor for the non-fulfilment by the suppliers of the single services included in the package travel, but only for the improper execution of the services, to which he is directly and personally obliged under the stipulation of the intermediate travel contract. According to the general regulations, art. 50 of the Tourism Code also provides that the retailer is responsible on his behalf (“regardless of whether the service is provided by the retailer”), on behalf of 40 In the Italian legal system, the proposal to provide for a joint liability (possibly subsidiary) of the retailer in the event of non-fulfillment by the organiser, although made at the time of the work of the competent Parliamentary Commission, was not accepted. The introduction of a passive solidarity relationship between co-debtors, although possible from a juridical point of view, suffers from a series of substantial contraindications, related to the actual situation of the Italian travel market and to the conditions in which the agencies established on the national territory operates. A different solution would be contrary to the Italian legal tradition; would contrast with the setting of the entire Legislative Decree of transposition (which sees clearly differentiated roles, obligations and responsibilities of organiser and retailer, which last operates as the traveller’s agent, that is in the name and in the interest of the user and not of the tour operator); would be contradictory with respect to the internal division of responsibilities (organiser and retailer are responsible for the violation of the obligations assumed under the stipulation of separate contracts); it would almost always result in a traveller’s action against the retailer, who also acts as his own agent; would force retail travel agencies to ensure the responsibility (not only of their own, but also of fact) of the organiser and third-party suppliers, with obvious negative economic effects. 41 It should also be noted, incidentally, that the legislator also felt free to return to the use of the traditional terminology “intermediate travel contract”, at least in art. 50 of the Tourism Code. 42 See A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1324.