Collective Commentary about the New Package Travel Directive

932 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE the applicable regime to the individual services offered to the traveller, particularly if deriving from international Conventions or European Union rules 84 . In particular, the Tourism Code does not provide for legal limitations and does not allow conventional limitations for personal injury 85 , following a trend now largely consolidated in the maritime and transport regulations 86 , which constitute the matrix on which the discipline of the responsibility of the package travel organiser was created upon 87 . With reference to prejudices, other than those regarding the person, the national legislator has instead made use of the faculty for the Member States through art. 14, par. 4, of the Directive (EU) 2015/2302, to allow the parties to agree on a limitation of the compensation due by the organiser 88 . As a result, it was established that the contract could provide for a limitation of the compensation due by the organiser for all other prejudice suffered by the traveller, except for personal injury or damage caused intentionally or through fault, provided that this limitation is not, in any case, less than three times the total price of the package (art. 43, par. 5, of the Tourism Code). The new regime also provides for the organiser to apply the limitations established by the international Conventions in force that bind Italy or the European Union, relating to the extent of the compensation or to the conditions in which it is due from a supplier who provides a travel service included in a package 89 . 84 According to Recital 35 of the Directive (UE) 2015/2302 “In order to ensure consistency, it is appropriate to align the provisions of this Directive with international conventions regulating travel services and with the Union passenger rights legislation”. 85 An exception to the principle could perhaps be represented by the art. 43, paragraph 4, code tur. that would allow the application of the “limitations” – without further specification and so possibly also those relating to personal injury – provided for by the international Conventions in force, which bind Italy or the European Union, relating to the extent of the compensation or to the conditions to which it is owed by a retailer who provides a tourist service included in a package. 86 Art. 43, par. 5, of the Tourism Code, in fact, establishes the limits within which a conventional limitation of compensation for damages is possible “except for personal injuries”. 87 The provisions regarding the package travel contract are substantially based on the experience of the general discipline of the international maritime and air transport system; see A. Pepe, “Circostanze eccezionali” ed esonero da responsabilità del tour operator nella nuova direttiva viaggi , in La nuova disciplina europea dei contratti di viaggio , cit., p. 153. 88 The “General terms and conditions of the package travel contract” adopted by the most representative associations of the organisers and retailers generally provide that “the package travel contract may provide for the limitation of compensation due by the organiser, except for damages to the person or those caused intentionally or through negligence, provided that this limitation is not less than three times the total price of the package” (see the general conditions set by Assoviaggi and Fiavet, signed by Adiconsum), or are limited to refer to the law (for example, the general conditions set by ASTOI). 89 At present, however, there’s no treaties or regulations in force for Italy and within the European Union which provide for legal restrictions or, even less, which allow for conventional limitations for compensation for personal injury. In this regard, it should be noticed that the national legislator, referring to the “international conventions in force that bind Italy ” (art. 43, par. 4, of the Tourism Code), made use of the faculty recognized by art. 14, par. 4, of the Directive (EU) 2015/2302, to limit the compensation due by the organiser even in cases where the limitation derives from “international Conventions not binding the Union ”.