Collective Commentary about the New Package Travel Directive

942 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE The right to stipulate other traveller assistance insurance policies (art. 47, par. 10, of the Tourism Code) is expressly without prejudice and is accompanied by a corresponding information obligation, to be provided to the traveller during the pre-contractual phase, regarding the possibility of taking out insurance to cover the costs of unilateral withdrawal from the contract or the costs for assistance, including the return trip, in the event of accident, illness or death (pursuant to art. 41, par. 1, letter h , of the Tourism Code). The traveller protection regime is completed by the obligation placed on the Member States by art. 17 of the Directive (EU) 2015/2302 to ensure that the organisers on the territory provide a guarantee for reimbursing all the amounts paid by or on behalf of travellers to the extent that the services offered are not carried out as a result of the organiser’s state of insolvency. This is a protection obligation which art. 18 of the same Directive requires to be taken on by professionals who facilitate linked travel arrangements, with regard to reimbursing all the payments they receive from travellers to the extent that a travel service is not carried out due to the state of insolvency of the same professionals. As far as the transposition in Italy is concerned, the events are well known regarding the National Guarantee Fund, established at the Presidency of the Council of Ministers by art. 21 of Legislative Decree No. 111/1995 112 , later transposed into art. 100 of the Consumer Code and finally reproduced in art. 51 of theTourismCode, now repealed, which gave rise to the opening of infringement procedure No. 2014/4094 by the European Commission 113 as a result of the inadequacy of the financial allocation and due to the limitation on trips abroad 114 . 112 Established at the Presidency of the Council of Ministers (later transferred to the Ministry for Cultural Heritage and Activities and Tourism) to allow the reimbursement of the price and the repatriation in the event of insolvency or bankruptcy of the organiser or retailer, as well as to provide an immediate economic availability in the event of forced return of travellers from non-EU Countries during emergencies, whether or not attributable to the behaviour of the organiser (pursuant to art. 21 of Legislative Decree No. 111/1995), the National Guarantee Fund is annually fed by a quota equal to 4 per cent of the amount of the fee for the mandatory insurance policies of the organiser and of the retailer (the adjustment of the amount from 1 to 2 per cent was due to art. 15, par. 2, of the Law of 5 March 2001, No. 57, while the last increase was envisaged by art. 4 of the Law of 6 August 2013, No. 97, which amended art. 51, par. 2, of the Tourism Code, meanwhile introduced by Legislative Decree No. 79/2011). 113 After sending a complementary formal notice pursuant to art. 258 TFEU on 23 January 2014, the procedure No. 2012/4094 – Infringement in transposition of Directive 90/314/CEE concerning package travel, package holidays and package tours, started against Italy, was finally archived by the European Commission with decision of 7 December 2017, after the intervention operated by the national legislator with the art. 9 (Provisions concerning package travel, package holidays and package tours. Infringement procedure No. 2012/4094) of the Law of 29 July 2015, No. 115, containing “Provisions for the fulfilment of the obligations deriving from Italy’s membership of the European Union – European Law 2014”. 114 See, in particular, the Parliamentary Acts of the XVII Legislature and the Dossier of the Research Department of the Senate of the Republic on the Bill A.S. n. 588, Provisions for the fulfilment of obligations deriving from Italy’s membership of the European Union – European Law 2013, May 2013, n. 16, p. 45.