Collective Commentary about the New Package Travel Directive

912 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The legislator has also dealt with the issue, which is particularly delicate due to its complexity and perceived as highly problematic by market operators, of “packages offered, and linked travel arrangements facilitated, occasionally and on a not-for-profit basis and only to a limited group of travellers” pursuant to art. 2, par. 2, lett. b ), of the Directive (EU) 2015/2302. Taking advantage of the option granted by the European Union regulations, art. 32, par. 2, lett. b ), of the Tourism Code, however, has limited the particular cases excluded from the transposition of the new regulations within strict margins of a subjective and objective nature, limiting it to packages and services facilitated or sold exclusively to its members by non-profit associations legitimized in accordance with the law, provided occasionally, not more than twice a year, and which are non-profit for a small group of travellers and without putting forth the offer to the public 29 . The definition of “package travel contract”, decidedly lacking from a technical legal point of view if considered in relation to the Italian legal tradition, is formulated by art. 33, par. 1, lett. d ), of the Tourism Code, in terms of “contract relating to the entire package or, if the package is provided on the basis of separate contracts, the set of contracts concerning the travel services included in the package” 30 . The new European Union legislation does not offer significant indications with regard to reviewing the prevailing and consolidated interpretative orientation envisaged in the doctrine and adopted in jurisprudence with reference to the legal nature of the package travel contract, which must be framed in the typical scheme of the locatio operis , in the legal figure of the service contract as established by art. 1655 of the Civil Code 31 . 29 With reference to the authorization system for the activity of travel agency, in the complex intertwining between State legislation and regional legislation, see, for all, after the entry into force of Legislative Decree No. 79/2011, M. Malo – A. Perini, Agenzie di viaggio e turismo , in V. Franceschelli – F. Morandi, Manuale di diritto del turismo , cit., pp. 176 and 200; previously, see also A. Cecchetti, La disciplina dell’impresa turistica , in M. Gola – T. Groppi (eds.), Diritto pubblico del turismo , Maggioli, Rimini, 2005, p. 158; S. De Nardis, Profili pubblicistici delle strutture ricettive, delle agenzie di viaggio e turismo e delle professioni turistiche: problemi e prospettive (nelle Regioni ordinarie) , in L. Degrassi – V. Franceschelli (eds.), Turismo. Diritto e diritti , Giuffrè, Milano, 2010, p. 195; and M.P. Chiti, Agenzie di viaggio , in Dig. disc. pubbl. , vol. I, Utet, Torino, 1987, p. 105. 30 The formule “package travel contract” has been maintained, for supposed requirements of adherence to art. 3, n. 3, of the Directive (EU) 2015/2302, instead of the expression “travel contract” more in line with the Italian legal tradition, which dates back to the cited Law No. 1977/1084; in addition to Authors cited in nt. 9, see F. Morandi, Contratto di viaggio , in Dizionario del diritto privato , cit., p. 134, and G. De Cristofaro, La nuova disciplina europea dei contratti di viaggio , cit., p. 13. 31 On the evolution of the doctrinal debate – which had led to qualify the legal nature of the contract concluded by the organiser, from time to time, as transport, mediation, sale, mixed contract, unnamed sui generis contract, promise of the fact of the third – for all, see again G. Silingardi – F. Morandi, La “vendita di pacchetti turistici” , cit., p. 128; in jurisprudence the question has been decided by Cass. civ., 6 January 1982, n. 7, in Riv. giur. circ. trasp. , 1982, p. 524; see also App. Milano, 20 October 1978, in Arch. civ. , 1979, p. 653; Pret. Taranto, 3 February 1984, ivi , 1984, p. 296; Trib. Roma, 17 January 1989, in Nuova giur. civ. comm. , 1989, I, p. 485, and in Giur. It. , 1991, I, 2, c. 66.