Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 923 In case of lack of conformity, if one of the travel services is not carried out according to what was agreed in the package travel contract, the traveller is obliged to promptly inform the organiser, in compliance with the cooperation obligations deriving from the contract with corresponding services concluded with the tour operator, thus placing the latter in a position to become aware of any disruption or disservice and to intervene with the aim of properly fulfilling the obligation 61 . The Italian legislator, in line with the intermediation function attributed by the Tourism Code to the retailer, specifies that the communication can take place “either directly or through the retailer” (art. 42, par. 2, of the Tourism Code) 62 . The organiser is obliged to remedy the inconvenience, unless this proves to be impossible or excessively onerous 63 , taking into account the extent of the lack of conformity and the value of the tourism services involved. If the organiser does not remedy the issue within a reasonable period set by the traveller with regard to the duration and characteristics of the package, the traveller can remedy the defect personally and request reimbursement of necessary, reasonable and documented expenses. In transposing the Legislative Decree, on the other hand, some significant references to the fundamental institutes of domestic law, that had been appropriately proposed in the preparatory texts, have disappeared. In particular, the reasonableness of the period set by the traveller to obtain the elimination of the lack of conformity must be established according to good faith principles, to avoid fatiguing disputes thus allowing the best balance between the needs of travellers and tour operators. 61 The new text of the Tourism Code shows a slight discrepancy with respect to the literal tenor of the Directive (EU) 2015/2302: art. 42, par. 2, of the Tourism Code specifies that the dispute should be presented to the organiser “promptly”, while the corresponding art. 13, par. 2, of the Directive (EU) 2015/2302 states that the traveller must inform the tour operator of the lack of conformity “without undue delay”; in the same way, art. 36, par. 5, lett. e , of the Tourism Code establishes that the contract must specify the fact that the traveller is required to communicate “without delay” any lack of conformity detected during the execution of the package (the adjective “undue” referred to the delay is missing), while the correlative art. 7, par. 2, lett. e , of the Directive (EU) 2015/2302, merely referring to the following art. 13, par. 2, of the Directive without further specification. 62 The provision implements art. 15 of the Directive (EU) 2015/2302, transposed in art. 44 of the Tourism Code, which recognizes to the traveller the possibility of contacting the organiser through the seller: it is established in fact that “the Member States ensure that the traveller can send messages, requests or complaints relating to the execution of the package directly to the seller through whom you purchased”, that will be required to forward them without undue delay to the tour operator, so that “for the purposes of compliance with the terms or limitations, the date on which the seller receives messages, requests or complaints pursuant to the first paragraph is considered the date of receipt also for the organiser”. 63 The expression “excessively onerous” replaces the reference to the fact that the remedy “entails disproportionate costs”, referred to in art. 13, par. 3, lett. b , of the Directive (EU) 2015/2302.