Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 921 (articles 48-67 of the Consumer Code) do not apply to organized tourism contracts governed by the Tourism Code 51 . 6. THE RESPONSIBILITY OF THE ORGANISER The responsibility of the organiser regarding the non-execution or defective execution of the obligations established in the package travel contract, introduced by Section IV ( Execution of the package , articles 42-46 of the Tourism Code), is configured by paying specific attention to the need to bring the European Union discipline to the general, domestic law models and the need to conform, as is possible, the supranational legislation to the Italian legal tradition. In fact, this is the part where the new regulation introduced by Legislative Decree No. 62/2018 differs more from Directive (EU) 2015/2302, both from the point of view of the literal formulation of the laws and from the point of view of the substantial choices made in the Tourism Code. First of all, worth highlighting is the clear separation between the position of the organiser and that of the retailer of the package travel, which definitively resolves all questions regarding the relative liability regime – supportive or partial, supportive but subsidiary, or “structurally differentiated” 52 – arising after the defective formulation of art. 14, par. 1, of Legislative Decree No. 111/1995 53 , then incorporated in art. 93, par. 1 of the Consumer Code 54 and finally reiterated by art. 43, par. 1 of the Tourism Code 55 . 51 See also the exceptions provided for by art. 59, lett. n , of the Consumer Code, according to which the right of withdrawal pursuant to art. 52-58 for (distance contracts and) contracts negotiated away from business premises is excluded in relation to “the supply of housing for non-residential purposes, transport of goods, car rental services, catering services or services concerning leisure activities if the contract provides for a specific date or period of performance”. 52 See G. Silingardi – F. Morandi, La “vendita di pacchetti turistici” , cit., p. 128. 53 Pursuant to art. 17, par. 1, Legislative Decree No. 111/1995, “in the event of failure or inadequate fulfillment of the obligations assumed with the sale of the package, the organiser and the retailer are required to pay damages, according to their respective responsibilities, if they do not prove that the failed or incorrect fulfillment has been determined from the impossibility of the service deriving from a cause not attributable to them [...] The organiser and the retailer are exempt from the responsibility referred to in articles 15 and 16, when the failed or inexact execution of the contract is attributable to the consumer or it depended on the fact of a third party of an unforeseeable or unavoidable nature, or of a fortuitous event or of force majeure”. 54 The Consumer Code reiterated the principle, taking care to specify, however, that “the differences in the quality standards of the promised or advertised service are considered to be inexact fulfillment” (in the second part of the article referred to in the text). 55 According to the previous regime, therefore, “without prejudice to the obligations envisaged by Article 42, in the event of failure or inadequate fulfillment of the obligations assumed with the sale of the tourist package, the organiser and the intermediary are required to pay damages, according to the respective responsibilities. The differences in the quality standards of the promised or advertised service are considered to be incorrect”.