Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 933 The logic behind this is to be found, once again, in the need to align the discipline of the compensation obligation and the liability regime of the package travel organiser with the provisions established by international Conventions that regulate the individual services offered 90 . Similarly inspired, is art. 43, par. 6, of the Tourism Code which establishes that the rights of the travellers provided by the European Union legislation, in addition to international Conventions, on transport will, in any case, remain unaffected 91 , while specifying that the compensation or the price reduction granted under the Tourism Code and those established according to European Union regulations and international Conventions are deducted from one other. In line with what is already established by the previous Tourism Code, the organiser or retailer, who has granted compensation or a price reduction or paid compensation for damages or has been forced to comply with other legal obligations regarding assistance or repatriation, has the right of recourse against those who contributed to the occurrence of the circumstances or the event that caused the damage, the price reduction or other obligations required by law 92 . Art. 51- quinquies of the Tourism Code confirms the hypothesis of legal subrogation already provided for by the previous Tourism Code, establishing that the package travel organiser who has compensated the traveller for damages is subrogated, within the limits of the compensation paid, in all the rights and actions due by the traveller towards third parties responsible for the damages. 90 According to Recital 35, where the organiser is liable for failure to perform or improper performance of the travel services included in the package travel contract, he must be able to invoke the limitations of the liability of the service providers set out in such international Conventions on transport, expressly referring to “the Montreal Convention of 1999 for the Unification of certain Rules for International Carriage by Air, the Convention of 1980 concerning International Carriage by Rail (COTIF) and the Athens Convention of 1974 on the Carriage of Passengers and their Luggage by Sea”. 91 See Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004, of the European Parliament and of the Council of 11 February 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; Regulation (EC) n. 1371/2007 of the European Parliament and of the Council, of 23 October 2007, on rail passengers’ rights and obligations; Regulation (EC) n. 392/2009 of the European Parliament and of the Council, of 23 April 2009, on the liability of carriers of passengers by sea in the event of accidents; Regulation (EU) n. 1177/2010 of the European Parliament and of the Council of 24 November 2010, concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No. 2006/2004; Regulation (EU) n. 181/2011 of the European Parliament and of the Council, of 16 February 2011, concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No. 2006/2004. 92 In this perspective, the art. 51- quinquies of the Tourism Code incorporates the provisions of art. 22 of the Directive (EU) 2015/2302 and coordinates with the provisions of art. 42, par. 1, of the Tourism Code on the responsibility of the organiser for the fact of the service provider. In jurisprudence, in this sense, see Cass. civ., 11 December 2012, n. 22619, in Dir. maritt ., 2014, p. 109; Cass. civ., 3 December 2009, n. 25396, in Giust. civ ., 2010, I, p. 1393; Cass. civ., 29 February 2008, n. 5531, in Danno resp ., 2008, p. 582.