Collective Commentary about the New Package Travel Directive

938 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE particular, to promptly forward any messages, requests or complaints to the organiser relating to the execution of the package travel formulated by the traveller (according to art. 44, par. 1, of the Tourism Code). The legislative framework is completed by the obligations of protection in the event of insolvency or bankruptcy pursuant to art. 47 of the Tourism Code, as well as attributing to the retailer the organiser’s obligations in the event that the package travel is provided by a tour operator established outside the European Union, except for the burden of proof that the latter is compliant with EU legislation (according to art. 51- ter of the Consumer Code). With reference to the retailer’s liability regime, Legislative Decree No. 62/2018 establishes specific regulations and clear rules on the responsibility of the intermediary regarding the sale of packages and booking travel services, which are kept separate from that of the travel organiser, according to the widely consolidated approach in national law. As previously mentioned, applying art. 13, par. 1, comma 2, of the Directive (EU) 2015/2302 is one of the most delicate and complex issues, on which the Directive offers greater autonomy to the Member States, and represents a particularly significant element of the new regulation of package travel contracts. Unlike the solution adopted in other European Union Member Countries, the domestic legislator has provided for a retailer’s liability regime that is formally distinct and structurally differentiated with respect to the package travel organiser 101 . The travel agent is liable to the traveller essentially for the violation of the obligations contractually taken on when stipulating the intermediate travel contract. The contract that bonds the traveller and the retailer is expressly considered as an independent intermediate travel contract, whereby the travel agent is liable to the tourist on the basis of the rules established by the mandate, because the fulfilment of the obligations taken on 101 In the Italian legal system, the proposal to provide for a joint liability (possibly subsidiary) of the retailer in the event of non-fulfillment by the organiser, although made at the time of the work of the competent Parliamentary Commission, was not accepted. The introduction of a passive solidarity relationship between co-debtors, although possible from a juridical point of view, suffers from a series of substantial contraindications, related to the actual situation of the Italian travel market and to the conditions in which the agencies established on the national territory operates. A different solution would be contrary to the Italian legal tradition; would contrast with the setting of the entire Legislative Decree of transposition (which sees clearly differentiated roles, obligations and responsibilities of organiser and retailer, which last operates as the traveller’s agent, that is in the name and in the interest of the user and not of the tour operator); would be contradictory with respect to the internal division of responsibilities (organiser and retailer are responsible for the violation of the obligations assumed under the stipulation of separate contracts); it would almost always result in a traveller’s action against the retailer, who also acts as his own agent; would force retail travel agencies to ensure the responsibility (not only of their own, but also of fact) of the organiser and third-party suppliers, with obvious negative economic effects.