Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 927 of conformity is attributable to the traveller or a third party unrelated to the provision of the travel services and is unpredictable or unavoidable or due to unavoidable and extraordinary circumstances 74 . Essentially, there is a system of strict liability for business risk, from which the organiser can be exonerated only by proving the existence of one of the causes of exclusion expressly provided for by the law, according to the consolidated model starting from the transposition of the Directive 90/341/EEC by Legislative Decree No. 111/1995 75 . 7. THE COMPENSATION FOR DAMAGES Once the responsibility of the package travel organiser has been ascertained, the traveller has the right to receive, without unjustified delay, adequate compensation for any damage that they may have suffered as a result of a lack of conformity (art. 43, par. 2, of the Tourism Code). Without prejudice to the right to receive an adequate price reduction depending on the period during which the lack of conformity took place, the compensation obligation borne by the package travel organiser refers both to damages to the traveller as a person and damages different than those to the person. 74 The notion of “inevitable and extraordinary circumstances” is defined by art. 33, par. 1, lett. o , of the Tourism Code as “a situation beyond the control of the party invoking such a situation and whose consequences would not have been avoided even by adopting all reasonable measures”, in accordance with art. 3, n. 12, of the Directive (EU) 2015/2302. The EU Court of Justice has had occasion to intervene recently on the parallel notion of “exceptional circumstance”: with judgment of 26 June 2019, in the case C-159/18, André Moens v. Ryanair Ltd ., clarified that the art. 5, par. 3, of the Regulation (EC) No. 261/2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No. 295/91, read in the light of Recitals 14 and 15 thereof, must be interpreted as meaning that the situation whose “exceptional circumstance” is ascertained must be considered a circumstance that could not have been avoided even if all the necessary measures had been taken pursuant to that provision (in in this case, the presence of fuel on an airport runway, which led to the closure of this runway). 75 Concerning the nature of the travel organiser’s responsibility, following the common thread that links current European Union legislation to the original provision introduced by the repealed Directive 90/314/EEC, see G. Silingardi – F. Morandi, “La vendita di pacchetti turistici” , cit., p. 209.