Collective Commentary about the New Package Travel Directive
944 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE It is also worth noting that traveller protection is also guaranteed via the provision of the obligation to stipulate “insurance policies or bank guarantees” which assist the package travel contracts. According to the methods already widely tested in Italy, organisers and retailers can form consortiums or another kind of associations suitable to collectively fulfill – via, as well, the establishment of a special fund for covering the relative risks and via the direct involvement of companies and associations in the insurance sector category – forms of reinsurance (art. 47, par. 3, of the Tourism Code). With regard to the coverage features, note that art. 47, par. 4, of the Tourism Code, adds to the requirements, set by art. 17, par. 2, of the Directive (EU) 2015/2302, for which the guarantee “shall be effective and shall cover reasonably foreseeable costs”, the further parameter with respect to “adequacy to turnover”, in an attempt to make the commitment required by the commercial operator both proportionate and sustainable. In order to further safeguard the position of the traveller it was established that the guarantee in case of insolvency or bankruptcy of the organiser should also cover the payment “of food” and the accommodation before repatriation and that the refunds are, in any case, paid without delay at the request of the traveller (pursuant to art. 47, par. 2, of the Tourism Code) 122 . With regard to the mutual recognition of protection in the event of insolvency (or bankruptcy), pursuant to art. 18 of the Directive (EU) 2015/2302, the Tourism Code excludes the obligation to provide the relative guarantee in the event that the organiser or retailer established in another European Union Country already has a professional liability insurance or other equivalent or comparable guarantee, regarding the purpose and coverage provided in terms of risk or capital insured or ceiling guarantee, as well as any exclusions from the coverage 123 . With reference to direct relations between the Member States, art. 48, par. 2, of the Tourism Code, identifies in the Ministry of Cultural Heritage and 122 While art. 17, par. 5, of the Directive (EU) 2015/2302 refers to the obligation to pay reimbursements, without undue delay, only to tourist services that have not been performed, the national legislator has opted for a more immediate solution for travellers, omitting to refer to the fact that the delay should not be “undue” and providing for immediate repayment as a general obligation that extends to all case. 123 Art. 47, par. 9, of the Tourism Code expressly refers to the provisions of art. 33 of Legislative Decree 26 March 2010, No. 59, implementing Directive 2006/123/EC relating to services in the internal market. Organisers or retailers established outside the European Union who sell or offer for sale packages travel in Italy or in another Member State are in any case obliged to provide a guarantee of traveller protection in the event of insolvency or bankruptcy equivalent to that provided for by the Tourism Code for the tour operator or travel agent established within the European Union.
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