Collective Commentary about the New Package Travel Directive

956 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE b) The responsibility of the organiser and the retailer 3.4. The reform introduces a clear and precise criterion for sharing the responsibilities of operators in the sector, in order to overcome the legal fragmentation which weakens the tourism market. The reform introduces the principle that the organiser is certainly responsible for the performance of the services covered by the travel contract. This liability may be combined, where appropriate, with that of the retailer. The same principle has been confirmed also by the Italian judge who, on the basis of the previous discipline, has made it clear that “ the travel agent and the tour operator must ensure not only the correctness and diligence of their own actions but also the judiciousness in the selection and control of any collaborations external: The travel agent, therefore, cannot advertise and sell package tours from tour operators whose reliability has not been verified in any way ” 9 . 3.5. As stated in the recital n. 8 of Directive n. 2015/2302, the main characteristic of a package is that there is one trader responsible as the organiser for the proper performance of the package as a whole. Only in cases where another trader is acting as the organiser of a package should a trader, typically a high street or online travel agent, be able to act as a mere retailer or intermediary and not be liable as an organiser. In any event, when considering whether a trader is an organiser or retailer, it should make no difference whether that trader is acting on the supply side or presents himself as an agent acting for the traveller. Moreover, it is necessary that the organiser is clearly identifiable by the traveller: if the retailer takes active action in the creation of a package or fails to indicate his or her status as a retailer or essential information about the organiser, the seller will be liable in full as an organiser and regardless of the description of his business 10 . According to the imperative nature of the Directive n. 2015/2302, in fact, a declaration by an organiser of a package or a trader facilitating a linked travel arrangement that he is acting exclusively as a travel service provider, as an intermediary or in any other capacity, or that a package or a linked travel arrangement does not constitute a package or a linked travel arrangement, shall not absolve that organiser or trader from the obligations imposed on her/him. 9 See, Consiglio di Stato Judgment, 19 january 2012, n. 209. 10 See, Tar Lazio Judgment, 4 july 2019, n. 8747.