Collective Commentary about the New Package Travel Directive

948 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE overriding mandatory provisions of the new European Union regulations, formally established by art. 23, which has been directly implemented in the provisions set out by art. 51- sexies of the Tourism Code. In particular, the organisers or professionals cannot avoid the obligations imposed on them in the field of organized tourism contracts. Thus, the declaration to act exclusively as a supplier of a travel service, retailer, intermediary or any other title, or that a package or a linked travel arrangements does constitute a package or linked travel arrangements does not exempt them from applying the Tourism Code regulations 131 . The unavoidable nature of the Directive’s transposing legislation and its necessary application are reinforced by the prohibition imposed on travellers to waive the rights conferred to them by the regulations governing package travel contracts and linked travel arrangements 132 . Finally, the peremptory certainty of the new regime is confirmed by the provision that the contractual clauses or the declarations that exclude or limit, either directly or indirectly, the rights recognized or whose purpose is to elude the application of the discipline in question do not bind the traveller 133 . With this in mind, the Italian legislator adhered faithfully to the new European Union legislation, taking care, at the same time, to operate according to the principle of maximum protection of travellers’ rights and, concurrently, to guarantee professionals, organisers and retailers the possibility of operating in conditions of equal and effective competitiveness in exercising their respective economic activities. The reduced margins of discretion established by the Directive have been exploited to the utmost by the national legislator, particularly with regard to the configuration of the intermediate travel contract as a distinct position with 131 The provision contained in par. 1 of art. 51- sexies of the Tourism Code finds correspondence in the opposite provision of art. 51- bis which, as mentioned in the text, introduces a specific burden (although the title refers to an “obligation”) for the retailer to indicate his quality, establishing that the travel agent is considered as organiser if, in in relation to a package travel contract, fails to provide the traveller with the standard information form and, if applicable to the package, information about the organiser, or fails to inform the traveller that he is acting as a retailer. 132 Art. 51- sexies , par. 2, of the Tourism Code subtracts from the autonomy of the parties the possibility of derogating from the European Union legislation of travellers protection, through a very broad and general reference to the “rights conferred on them by the provisions of this Chapter”, in a similar way as the repealed art. 78, par. 1, of the Tourism Code (which established that “are null the contractual clauses or the added clauses of renunciation by the consumer to the rights provided for in this chapter or of limitation of the responsibilities envisaged by the operator”). 133 The wording of art. 51- sexies , par. 3, the Tourism Code reminds the provision of art. 1229, par. 1, of the Civil Code, where it establishes the invalidity of the liability waiver clauses, referring to any agreement that excludes or limits in advance the debtor’s liability for fraud or gross negligence. The provision in question, however, covers a decidedly broader spectrum of cases: by referring to all “rights” in general recognized by the new legislation, it greatly expands the field of application; omitting any reference to the “intent” or “gross negligence” also extends to cases of slight negligence, affecting without distinction all the possible relevant cases under the subjective profile.