Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 925 the Tourism Code) 67 .Thirdly, the European Union legislation provides in any case for the traveller’s right to compensation for damages suffered as a result of the organiser’s failure to fulfill the obligations taken on after stipulating the package travel contract, according to the new regulations established by art. 14 of the Directive (EU) 2015/2302. In line with the general discipline concerning the termination of the contract, the travel organiser is not obliged to remedy the lack of conformity only in cases where the exact fulfillment (or alternative remedial solution) is impossible or entails disproportionate costs; this latter hypothesis must be evaluated on the basis of the extent of the lack of conformity and the value of the travel services involved 68 . The Tourism Code also introduces a new hypothesis of legal resolution of the package travel contract for cases in which the organiser does not remedy the lack of conformity contested by the traveller within the reasonable period established by the latter, provided that the non-fulfillment by the tour operator has little importance in regard to the user’s interest (pursuant to art. 42, par. 5, of the Tourism Code, which makes an express reference to art. 1455 of the Civil Code) 69 . This change represents a further example of how the national legislator while respecting the stringent constraints imposed by the level of detail of the European Union rules, has made an interesting effort to bring the remedies provided for by the Directive within the general details of the civil regulations 70 . Within this perspective, the configuration is also placed as a hypothesis of partial supervening impossibility not attributable to the debtor – framed within the scope of art. 1464 of the Civil Code, which gives rise to an alternative 67 The reduction of the price of the tourist package is independent of any evaluation of the eventual non- -fulfillment and of the existence of reasons for exemption from the responsibility of the organiser. The regulation in question repeats the scheme of the price reduction in the sale of consumer goods, as per art. 1492 of the Civil Code, so that the admissibility of the accumulation of the remedy of the price reduction with the right of the traveller to compensation for damages does not seem to be revocable. 68 The expression “entails disproportionate costs” used in art. 13, par. 3, lett. b , of the Directive (EU) 2015/2302 has been appropriately interpreted as “excessive burdens”, not differently from what was foreseen at the time of transposition into art. 130 of the Consumer Code of art. 3 of the Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale and guarantees of consumer goods. 69 Art. 42, par. 5, of the Tourism Code offers an interpretation oriented to the general principles regarding obligations and contracts of the expression “significantly affects the performance of the package” used in art. 13, par. 6, of the Directive (EU) 2015/2302. 70 A further hypothesis of legal resolution also occurs in the event that the organiser fulfills the obligation to offer alternative solutions if, due to circumstances not attributable to the tour operator, it is impossible to supply, in the course of execution, a part substantial, by value or quality, of the combination of the tourist services agreed in the contract (art. 42, par. 10, of the Civil Code, in relation to par. 8 of the same article).