Collective Commentary about the New Package Travel Directive

338 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE auxiliaries (“auxiliaries or designates when they are exercising their functions”) and on behalf of “third parties” to render the service 43 . The general attribution of the liability criterion is also based on the ordinary outline of assessment of the liability of the agent, considering that the exact fulfilment of the obligations taken on by the retailer, towards the traveller, must be evaluated with regard to the diligence required for carrying out the service of the corresponding professional activity 44 . In particular, with regard to the agent’s activity, the retailer is responsible for culpa in eligendo in choosing the organiser of the package travels or the service provider with which to conclude the contract in the name and on behalf of the traveller 45 . With reference to the possibility of a booking error, however, the indications provided by art. 21 of the Directive (EU) 2015/2302 must be considered binding, to the point of picturing the provision of a different liability regime 46 . According to art. 51, par. 1, of the Tourism Code, the retailer is responsible for errors due to technical defects, to him attributable, in the booking system and, if he has agreed to organise the booking of a package or travel services that are included in linked travel arrangements, for the mistakes made during the booking process. Once the outline of the particular case is identified, the criterion of attribution of responsibility for non-fulfilment is based on greater rigidity than the simple reference to the agent’s professional diligence parameter. It is in fact envisaged that the professional can be freed only by positively identifying the cause that led to the occurrence of the adverse event and proving that it is one of the hypotheses strictly defined by the law as causes for exemption (pursuant to art. 51, par. 2, of the Tourism Code); namely that booking errors are attributable to the traveller or are due to unavoidable and extraordinary circumstances. With regard to the compensation obligation, the retailer is also affected by the regulation of damage due to ruined holidays established by art. 46, par. 1, of 43 In acordance with art. 1228 of the Civil Code; see A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1327. 44 With regard to the determination of the content of the obligation of the retailer, with reference to the rules established in terms of mandate with representation and, thus, above all to artt. 1710 and followings, 1387 and followings, and 1176, par. 2, of the Civil Code, see Trib. Bologna, 15 October 1992, in Contr. , 1993, p. 327, with a comment by A. Ambanelli, La responsabilità dell’intermediario nel contratto di viaggio , which in this case considered the intermediary “certainly negligent in choosing the package travel organiser”. 45 See Trib. Roma, 25 January 1978, in Giur. merito , 1979, I, p. 338; Trib. Orvieto, 11 February 1992, in Foro it ., 1992, I, c. 1571, with a comment by V. Roppo; Trib. Roma, 25 January 1978, in Giur. merito , 1979, I, p. 338; Trib. Bologna, 15 October 1992, cit. . 46 Art. 21, par. 2, of the Directive (EU) 2015/2302 introduces a specific discipline for the hypothesis of liability of the retailer in case of booking error, establishing that “a trader shall not be liable for booking errors which are attributable to the traveller or which are caused by unavoidable and extraordinary circumstances”.