Collective Commentary about the New Package Travel Directive

ARTICLE 13 | FRANCESCO MORANDI AND CHIARA TINCANI 339 the Tourism Code, which reinforces the distinction between the debt position of the organiser of the package travel and that of the retailer. In fact, consistent with the different legal nature of the relationships, the traveller can request, in addition to and independently with regard to the termination of the contract, compensation for damage, correlated to the unnecessarily spent vacation time and the unrepeatability of the lost opportunity “to the organiser or retailer, according to the responsibility deriving from the violation of the obligations taken on through the respective contracts” 47 . Last but not least, the traveller’s right to any compensation for damage suffered as a result of the non-fulfilment by the intermediary travel agent – including the specific case of liability in the event of a booking error (art. 51) – will expire in two years from the date of return of the traveller to the place of departure 48 . In this perspective, the reduced discretional margins allowed by the Directive have been exploited to the utmost by the national legislator, particularly with regard to the configuration of the travel intermediation contract as a distinct figure with respect to the package travel contract and the contracts concerning linked travel arrangements, following a consolidated tradition in the internal system. 5. A FEW BRIEF CONCLUDING REMARKS Finally, the directive’s framework has normally been implemented without particular originality, at least as far as this partial review is concerned. Apart from Germany and Italy 49 , who have opted for a specific retailer liability regime, the other regulations examined have extended the discipline envisaged for the organiser to the travel agent, without making any substantial corrective measures, which perhaps the different economic role would have required. 47 According to art. 51- quinquies of the Tourism Code, the retailer who has compensated the damage caused by a third party has the right of recourse provided for in par. 1 and the right of subrogation in the position of the traveller referred to in par. 2; see A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1328. 48 However, the three-year limitation period established by art. 46, par. 2, of the Tourism Code for the compensation of damage due to ruined holiday, as well as the different periods of limitation established for the responsibility of the organiser of the package travel remains valid in case (a) of failure to indicate the quality of intermediary (pursuant to art. 51- bis of the Tourism Code) and (b) in hypothesis of an organiser established outside the European Economic Area (art. 51- ter of the Tourism Code). 49 Art. 651v of Drittes Gesetz zur Aenderung reiserechtlicher Vorschriften 17 July 2017 concerning the modification of the Buergerliches Gesetzbuch .