Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 919 between the position of the tour operator and that of the traveller depending on the increase or decrease of some elements of the package travel, deserves special consideration (art. 39 of the Tourism Code). The organiser is recognized as having the right to increase the price of the package travel within the mandatory limits specified by the law 46 , depending on the variation of transport costs, taxes or travel service fees and exchange rates. As in the past, a price increase can only take place up to twenty days prior to departure, on the condition that the contract expressly specifies this aspect and indicates the methods of calculation, while the percentage of increase in the total price of the package travel product is increased to 8%, beyond which the traveller is entitled to withdraw from the contract 47 . In the presence of similar causes, the traveller has the right to a corresponding reduction in the price if the costs of the package travel decrease, less administrative expenses and (adds the Italian legislator) document processing costs. It is worth noting that, while the organiser cannot increase the price, regardless of its origin, in the twenty-day period preceding the start of the trip, the traveller’s right to obtain a corresponding price reduction refers to the entire time period that precedes the departure, from the conclusion of the contract until the beginning of the execution of the package travel 48 . Reference is made to the general principle according to which the organiser cannot unilaterally change the conditions of the package travel contract with regard to the price; the regulation regarding the variations of the other package travel contract conditions, introduced by articles 40 and 41 of the TourismCode, does not differ from the corresponding regulation of articles 11 and 12 of the Directive (EU) 2015/2302 49 . 46 In addition to the indication of the mandatory causes in which the increase is allowed, which present some elements of more detail with respect to the provisions of previous art. 40 of the Tourism Code, the new regulation sets another series of limits: the contract expressly provides for it, indicates the calculation methods, specifies that the traveller is entitled to a corresponding price reduction (art. 39, par. 1); is given after clear and precise communication on the durable support by the organiser to the traveller, together with the justification of this increase and the calculation methods (art. 39, par. 4). 47 See art. 39, par. 3, of the Tourism Code (previous art. 40, par. 2 and par. 3), which implements the provision of art. 11, par. 2, of the Directive (EU) 2302/2015. 48 According to art. 39, par. 1, of the Tourism Code the traveller is entitled to a reduction in the price corresponding to the decrease in costs in relation to the circumstances indicated by the law that occur “after the conclusion of the contract and before the start of the package”. In this way an evident asymmetry is determined with respect to the provision of the following par. 4, according to which the organiser can increase the price of the trip only upon notice to the traveller “at least twenty days before the beginning of the package”. 49 See M. Musi, Sub art. 40 , and A. Claroni, Sub art. 41 , in D.lgs. 23 maggio 2011, n. 79, Codice del turismo , cit., pp. 1234 e 1249; S. Pagliantini, Modifiche anteriori e recesso da un contratto di pacchetto turistico secondo il canone della dir. 2015/2302/UE , cit., p. 65; G. Terlizzi, Modifiche unilaterali e cancellazione del pacchetto turistico , cit., p. 147; see also M. Gambini, Il recesso nella contrattazione turistica: da rimedio solutorio a strumento di riequilibrio delle posizioni contrattuale , in Riv. dir. priv ., 2016, p. 451.