Collective Commentary about the New Package Travel Directive

924 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The attempt to enhance the general principles also included the reference to art. 1227 of the Civil Code, establishing the traveller’s contributory negligence in case of failure or delayed notification of any lack of conformity detected during the execution of a travel service 64 . It is reasonable to believe, however, that failure to explicitly recall the principles indicated above does not in any way prejudice the concrete and full application in relation to the specific cases. On the other hand, it is the same Recital 34 of the Directive (EU) 2015/2302 which clearly indicates that the traveller is obliged to inform the organiser without undue delay, taking into account the circumstances of the case, of any lack of conformity he perceives during the execution of a service included in the package travel contract, to the point that “failure to do so may be taken into account when determining the appropriate price reduction or compensation for damages where such notice would have avoided or reduced the damage”. In the presence of a lack of conformity, a number of various remedies are granted to the traveller, depending on the fact whether the organiser may or may not intervene with remedial action or adopt a remedial measure 65 . Firstly, according to the new regime, the organiser of the travel package is obliged to take action to remedy the lack of conformity, according to the same logic with which the right of the clients to request that the contractor eliminate, at their own expense, the differences or defects of the work or service, pursuant to art. 1668, par. 1, of the Civil Code 66 . Secondly, a particularly significant element of novelty with respect to the previous regulation of organized tourism contracts is represented by the fact that the traveller is entitled to an adequate price reduction for the period during which there was a lack of conformity, unless the organiser can demonstrate that this defect is attributable to the traveller (art. 43, par. 1, of 64 The legislator has failed to reiterate the provisions of the previous art. 49, par. 3, of the Tourism Code, pursuant to which “the failure to present the complaint can be assessed for the purposes of article 1227 of the Civil Code”. In doctrine, for the applicability of the art. 1227 of the Civil Code to the case in question, A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1329; G. Grisi – S. Mazzamuto, Diritto del turismo , cit., p. 213; R. Santagata, Diritto del turismo , cit., p. 306, nt. 79. 65 For the configuration of a hierarchical graduation between remedial interventions and secondary remedies, in the event that the subsequent fulfillment is impossible or excessively expensive, see G. Grisi – S. Mazzamuto, Diritto del turismo , cit., p. 209; A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1332. 66 The qualification of the package travel contract as a service contract, proposed by civ G. Silingardi – F. Morandi, “La vendita di pacchetti turistici” , cit., p. 128, has found wide acceptance in doctrine and fully legitimizes the parallelism with the discipline of the art. 1655 and followings.