Collective Commentary about the New Package Travel Directive

626 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE FOREWORD The previous European legislation on package travel was the Directive 90/314/EEC 3 and it was limited to specifically protecting consumers in relation to traditional package travel sales by travel agencies 4 . However, the 1990 Directive was no longer appropriate for the changes that have taken place in the digital age and to the commercial evolution of the tourism sector. The European legislator has therefore adopted the new (EU) Directive 2015/2302 on package travel and related tourist services. This is a very incisive intervention for the field of tourism law 5 . However, as far as the tax profiles are concerned, the Directive avoids dealing with the numerous and latent problems that have long been debated 6 . In fact, it emerges that there are almost no relevant tax provisions within the scope of the Directive. This is despite the fact that it is commonly believed that taxation in the tourism sector is of considerable importance and it represents a central issue in the dynamics of competition and tax competition between Member States 7 . 3 Council Directive of 13 June 1990 on package travel, package holidays and package tours (90/314/EEC). 4 The 1990 Directive was transposed and implemented in Italy by Legislative Decree no. 111 of 17 May 1995, officially entering into force on 11 October 1995. 5 On these issues see for all: The New Package Travel Directive , Franceschelli, Morandi and Torres (edited by), Eshte Inatel, Lisbon 2017; Sustainable Tourism Law , Franceschelli, Morandi and Torres (edited by), Eshte Inatel Alentejo, Lisbon 2018; V. Franceschelli, F. Morandi, Manuale di diritto del turismo , Torino, Giappichelli, 6 ed., 2017. 6 For example, letter C of Article 2 of Directive 2015/302 excludes from the scope of application “packages and linked travel arrangements purchased on the basis of a general agreement for the arrangement of business between a trader and another natural or legal person who is acting for purposes relating to his trade, business, craft of profession”. The matter has long been debated. The European Commission has consistently considered the application of the special VAT scheme to the subjective status of the recipient to be subordinate; in the Commission’s view, it was necessary for the latter to be a traveller, thus excluding the special scheme from being applicable in the stages prior to the “consumer” sale. However, the Commission’s approach has been disregarded by case-law. In Joined Cases C-236/11, C-189/11, C-193/11, C-269/11, C-293/11, C-269/11, C-309/11 and C-450/11 of 26.09.2013, the Court of Justice rejected the European Commission’s complaints against Italy, Spain, Poland, the Czech Republic, Greece, France, Finland and Portugal respectively, favouring the exclusively objective application of the special scheme for travel agents. This conclusion, according to which it is necessary to take account of the nature of the supply and not the status of the recipient of the supply, is justified in the light of the objectives of the provisions governing the special VAT arrangements at European level. In particular, the special scheme aims to simplify the procedures for recovering, by deduction or refund, the tax paid on services purchased in the various countries, while ensuring that each service is taxed at the place where final consumption takes place. But today the Directive 2015/2302 seems to exclude this last interpretation, making it clear that the EU legislation on package travel does not apply to those subjects not definable as travellers. 7 In order to understand the importance, also internationally speaking, of tourism taxation, see, finally, the contribution of B. Biagi, M.G. Brandano, M. Pulina, Tourism taxation: A synthetic control method for policy evaluation , in International Journal of Tourism Research , vol. 19, n. 5, 505-514; see also within the last documents of OCSE, Tourism Trends and Policies 2018, Parigi, OECD Publishing.