Collective Commentary about the New Package Travel Directive

926 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE obligation on the part of the tour operator – in the event that “due to circumstances not attributable to the organiser it is impossible to provide, during the execution, a substantial part, by value or quality, of the combination of the travel services agreed in the package travel contract” (art. 42, par. 8, of the Tourism Code) 71 . The remedial system established by the legislator envisages that the organiser is required to offer, without additional costs to the traveller, adequate alternative solutions, of quality where possible equivalent or higher than those specified in the contract or of a lower quality with an adequate price reduction, which the traveller can refuse only if not comparable to what agreed in the travel package contract or if the reduction of the price granted is inadequate 72 . In this regard, it is still necessary to highlight that (in contrast with the provisions of European Union legislation) if it is impossible for the organiser to provide alternative solutions or the traveller rejects the appropriate alternative solutions that have been proposed, art. 42, par. 10, of the Tourism Code, recognizes the latter only the right to reduce the price, whereas art. 13, par. 6, comma 2, of the Directive (EU) 2015/2302 also allows compensation for damages 73 . Finally, the organiser’s liability regime is completed by the provision of a mandatory series of exclusion clauses indicated by art. 43, par. 3, of the Tourism Code, in accordance with the provisions established by art. 14, par. 3, of the Directive (EU) 2015/2302. The traveller is not entitled to compensation for damages resulting from the non-fulfilment of the obligations within the travel package contract in the event that the tour operator demonstrates that the lack 71 The wording of the provision in question differs significantly from art. 13, par. 5, of the Directive (EU) 2015/2302, from which it derives directly, which is limited to referring to the hypothesis in which “a significant proportion of the travel services cannot be provided as agreed in the package travel contract”. Art. 42, par. 5, of the Tourism Code, in fact, completes the description of the case by introducing some additional qualification elements, capable of better defining the scope of application and the legal effects, recalling the concepts of “supervening circumstances”, which are “not attributable to the organiser”, and affect the “value and quality” of the tourist services included in the package. 72 In considering that the Italian legislator has reported the impossibility not already to the remediation of the lack of conformity, but to the execution of the services deducted in obligation, circumscribing the scope of the remedial case, A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1334 s., observes that the choice between alternative solutions is not freely attributed to the professional, who will be required first of all to offer a package of superior quality or equivalent and, only in the event that it is impossible or excessively burdensome, can propose a journey of lower quality with adequate price reduction, thereby innovating with respect to the previous art. 41, par. 4, of the Tourism Code. 73 It should also be noted that art. 42, par. 10, of the Tourism Code does not reproduce the words “without terminating the package travel contract” which closes the art. 13, par. 6, comma 2, of the Directive (EU) 2015/2302.