Collective Commentary about the New Package Travel Directive

368 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE the motivation. EEC Directive 90/314 5 had left considerable discretion to Countries to establish whether the retailers, the organisers, or both, were responsible for implementing the transaction and this flexibility had generated ambiguity in some judicial systems regarding the identification of the responsible subjects 6 . According to the current directive, the organisers are always responsible, yet national rights can outline the position of intermediaries. In particular, according to art. 13, par. 1, second clause, the State has the task of identifying the relative liability regime. The Community legislator intervened in just one case 7 . According to art. 15, par. 1, the States must allow tourists to send messages, requests or complaints to organisers not only directly, but also through intermediaries. The power of national law to outline the retailer’s liability model encounters a limit where relations with travellers are defined. In each legal system, retailers must be allowed to act in representation of their clients towards the organisers 8 . They must take care of the interests of tourists in a diligent manner and provide for the forwarding of information. An eventual delay determines an additional and separate responsibility from that of the activity of intermediaries and outlined by the States. According to art. 15, par. 2, acts are considered received by organisers when they reach retailers, to comply with the terms or with the so-called limitation periods. The European legislator does not bother to determine whether or how certain acts, requests or actions are regulated in the various legal systems. For example, in Italy, according to outdated orientation 9 , claims would have to be presented within ten days of the traveller’s return, under penalty of forfeiture. If this approach were still relevant 10 , negligent conduct on the intermediaries’ part could not have compromised the tourist’s rights, pursuant to art. 15, par. 2. In fact, the national legal system must respect the principle by which the act is received by the organiser when it reaches the intermediary. 5 See Zunarelli, EEC Directive n. 90 / 314 dated 13 June 1990 concerning travel, “all-included” holidays, in Dir. trasp., 1994, 69 ss.; V. Franceschelli, The use of travel arrangements in the context of community policy, in Various Authors., Tourism: strategic industry of the new millennium Milan, 1997, 30 ss.; Silingardi – Morandi, The sale of tourist packages, Torino, 1998, 45 ss.; Tassoni, The travel contract, Milan, 1998, 235 ss. 6 See the twenty-third recital of EU Directive 2015/1302. 7 See art. 15 of EU Directive 2015/1302. 8 See art. 15, para. 1, of EU Directive 2015/1302. 9 See De Nova, Unfair clauses and tourist contracts, in The contracts, 1997, 85 ss. 10 See Justice of the Peace, Genoa 24 October 2007, in Dir. tur., 2008, 35.