Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 917 should also be information relating to “administrative and management fees.”. Although this aspect may appear to be a secondary issue, the relative calculation in the event of a transfer of the package travel or price reduction, in fact, has often been the source of exhausting disputes between travellers and operators 40 . In order to establish a more effective reconciliation of the opposing interests of travellers and travel organisers, in compliance with the principle of good faith, it was also envisaged that the contract should specify the fact that the traveller is required to communicate “without delay” 41 any lack of conformity detected during the execution of the package, taking into account the circumstances of the case, so as to allow the defaulting operator to promptly find a remedy to the problem (art. 36, par. 5, lett. e , of the Tourism Code) 42 . Following the indications established by the Directive, as mentioned, the internal transposing regulations confirm that the information provided to the traveller, in the pre-contractual phase, is an integral part of the package travel contract and cannot be modified unless explicitly agreed by the contracting parties. The binding nature of all the pre-contractual information and the content of the package travel contract are accompanied by the provision that the burden of proof relating to the fulfillment of the obligations in question is borne by the professional. The legislator has also maintained the closure rule, which is already found in the previous Tourism Code text, which clearly states that it is explicitly forbidden to provide misleading information regarding the service offered, the price and the other elements of the contract, whatever the means by which this information 40 Art. 35, par. 1, lett. c , of the Tourism Code responds to a need for clarity and allows a better reconciliation of the opposing interests of travellers and organisers. The provision in question is also coordinated with the art. 38, par. 2, of the same Code, regarding the transfer of the package travel contract to another traveller and with par. 5 of the same article in the event of a price reduction. 41 Note that the adverb is not present in the corresponding art. 7, par. 2, lett. e , of the Directive (EU) 2015/2302, which however refers to the following art. 13, par. 2, of the Directive, which specifies how the traveller is required to inform the organiser of the lack of conformity “without undue delay”; the expression in question returns then, in a still different formula, in the art. 42, par. 2, of the Tourism Code, which indicates how the dispute should be presented to the organiser “promptly”. 42 With reference to the various aspects of the complaint, as well as the question concerning the expiry of the terms established by the previous regulations, see Giud. pace Roma, 27 September 2001, in Dir. mar ., 2003, p. 574, with a comment by R. Abbate, Pacchetto turistico e tutela del consumatore ; Giud. pace Caserta, 28 May 2002, in Dir. trasp ., 2003, p. 229 with a comment by L. Tullio, La qualificazione del termine per la presentazione del reclamo nel contratto di viaggio ; Trib. Roma, 2 October 2003, in Dir. trasp ., 2005, p. 285, with a comment by L. Tullio, Interpretazioni discutibili ed inquietanti della normativa sul contratto di viaggio ; Cass. civ., Sez. III, 31 July 2006, No. 17444, in Dir. mar ., 2007, p. 840; Giud. pace Genova, 24 October 2007, in Dir. tur ., 2008, p. 35, with a comment by S. d’Urso, Danno da vacanza rovinata e termine per il reclamo di cui all’art. 98 cod. cons .; App. Genova, 28 December 2011, in Dir. mar ., 2013, p. 468.