Collective Commentary about the New Package Travel Directive

ITALY | FRANCESCO MORANDI 943 The current traveller protection and assistance system is still the same structure introduced by art. 9, par. 1, lett. b ), of the Law 29 July 2015, No. 115 115 , which envisaged the obligation, for the organiser and the retailer, to stipulate insurance policies or provide bank guarantees capable of ensuring reimbursement of the price paid for the purchase of the package travel and the immediate reimbursement for the traveller in case of the operator’s insolvency or bankruptcy 116 . It still represents the essential reference point today in guaranteeing an adequate protection for the traveller and offers an effective answer to a question that the European Union legislator considers of fundamental importance 117 . With reference to the new regulations 118 , it is worth highlighting how, at the national level, the expression “insolvency” referred to in art. 17-19 of the Directive (EU) 2015/2302 119 has been interpreted broadly, extending its meaning to include, according to a custom that has always been followed in the travel contract, cases of “insolvency or bankruptcy” (most recently, pursuant to art. 47, par. 2, of the Tourism Code) 120 . Furthermore, the obligation to protect the traveller has been extended – in addition to the professionals who facilitate linked travel arrangements (pursuant to art. 49, par. 1, of the Tourism Code, which incorporates art. 19, par. 1, of the Directive EU 2015/2302) – also to the package travel retailer 121 . 115 The original deadline of 1 January 2016, envisaged for the entry into force of the new regime, was extended to 30 June 2016 by art. 1, par. 348, lett. b , of the Law of 28 December 2015, No. 208. 116 On the insurance obligations imposed on the organiser and the retailer, as a condition for the opening of travel agencies, see, at a manual level, M. Malo – A. Perini, Agenzie di viaggio e turismo , in V. Franceschelli – F. Morandi, Manuale di diritto del turismo , cit., p. 191; see also, for the civil law profiles, G. Ciurnelli, I contratti del turismo organizzato , cit., p. 373. 117 The topic returns several times in the Directive (EU) 2015/2302 and is the subject of specific attention in Recitals 38 to 44. The importance of the question is such that the term “insolvency” occurs 94 times in the Directive, among Recitals, legislative text and attachments. 118 For a first comment see T. Pellegrini, Sub artt. 51-quinquies-51-sexies , in D.lgs. 23 maggio 2011, n. 79, Codice del turismo , cit., p. 1404. 119 Art. 7 of the Directive 90/314/EEC provided, instead, that “the organiser and/or the retailer” part of the contract should provide sufficient evidence of having guarantees to ensure, “in the event of insolvency or bankruptcy”, the repayment of deposited funds and repatriation of the consumer. 120 Incidentally, note that, following the reform introduced with Legislative Decree 12 January 2019, No. 14, concerning the Code of business crisis and insolvency, the term “bankruptcy” in the current legal provisions must be understood to be replaced with the term “judicial liquidation”, without prejudice to the continuity of the cases (art. 349), after eighteen months from the date of its publication in the Official Journal (art. 389). 121 The literal formulation of art. 47 of the Tourism Code presents some terminological imprecision: while there is no doubt that the guarantee that assists “package travel contracts” also refers to the cases of insolvency or bankruptcy of the organiser “or the retailer” (par. 2), the fact that “intermediaries”, in addition to organisers, may form consortia or other kind of association (par. 3) must be understood as referred to the “retailers” pursuant to art. 33, par. 1, lett. l , of the Tourism Code.