Collective Commentary about the New Package Travel Directive

940 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE With reference to the possibility of a booking error, however, the indications provided by art. 21 of the Directive (EU) 2015/2302 must be considered binding, to the point of envisaging the provision of a different liability regime 107 . According to art. 51, par. 1, of the Tourism Code, the retailer is responsible for errors due to technical defects in the booking system that are attributable to him and, if he has agreed to organize the booking of a package or travel services that are included in linked travel arrangements, for the mistakes made during the booking process. Once the outline of the particular case is identified, the criterion of attribution of responsibility for non-fulfillment is based on greater rigidity than the simple reference to the agent’s professional diligence parameter. It is in fact envisaged that the professional can be freed only by positively identifying the cause that led to the occurrence of the adverse event and proving that it is one of the hypotheses strictly defined by the law as causes for exemption (pursuant to art. 51, par. 2, of the Tourism Code); namely that booking errors are attributable to the traveller or are due to unavoidable and extraordinary circumstances. With regard to the compensation obligation, the retailer is also affected by the regulation of damage due to ruined holidays established by art. 46, par. 1, of the Tourism Code, which reinforces the distinction between the debt position of the organiser of the package travel and that of the retailer. In fact, consistent with the different legal nature of the relationships, the traveller can request, in addition to and independently with regard to the termination of the contract, compensation for damage, correlated to the unnecessarily spent vacation time and the unrepeatability of the lost opportunity “to the organiser or retailer, according to the responsibility deriving from the violation of the obligations taken on through the respective contracts” 108 . Last but not least, the traveller’s right to compensation for damage suffered as a result of the non-fulfilment by the intermediary travel agent – including the specific case of liability in the event of a booking error (art. 51) – will expire in two years from the date of return of the traveller to the place of departure 109 . 107 Art. 21, par. 2, of the Directive (EU) 2015/2302 introduces a specific discipline for the hypothesis of liability of the seller in case of booking error, establishing that “a trader shall not be liable for booking errors which are attributable to the traveller or which are caused by unavoidable and extraordinary circumstances”. 108 According to art. 51- quinquies of the Tourism Code, the retailer who has compensated the damage caused by a third party has the right of recourse provided for in par. 1 and the right of subrogation in the position of the traveller referred to in par. 2; see A. Finessi, La responsabilità del professionista nella nuova disciplina dei contratti di viaggio , cit., p. 1328. 109 However, the three-year limitation period established by art. 46, par. 2, of the Tourism Code for the compensation of damage due to ruined holiday, as well as the different periods of limitation established for the responsibility of the organiser of the package travel remains valid in case (a) of failure to indicate the quality of intermediary (pursuant to art. 51- bis of the Tourism Code) and (b) in hypothesis of an organiser established outside the European Economic Area (art. 51- ter of the Tourism Code).