The Legal Impacts of COVID-19 in the Travel, Tourism and Hospitality Industry

10 reading of the Article that one could have thought of an effective balance of interests: the reimbursement to all for the tour operator and other tourism professionals, would, in fact, entail a possible default, which already in these terms is highly probable. Confirmation of this interpretation comes with the amendments to Article 28 . Likewise, the new Article 88 bis of Law No. 27/2020 is very clear in this sense; and, in addition to the option to choose left to the tour operator, in paragraphs 6 and 7, it also grants further protection to him, that we will analyse shortly. As regards the tour operator, it is provided verbatim that, in the face of the withdrawal of either the traveller 10 or the organiser, the latter, as an alternative to the reimbursement provided for in Article 41 paragraphs 4 and 6 of Legislative Decree No. 79/11, may offer an alternative package or can issue a voucher. The explication, through the use of the lexical formula “as an alternative”, clarifies doubts about the type of obligation. Moreover, in order not to leave further doubts, paragraph 12 states that the emission of the vouchers provided for in this article fulfils the related repayment obligations and does not require any form of acceptance by the recipient. Therefore, now it can be said that it is, unequivocally, an alternative obligation in favour of the tour operator, but also of the other service providers such as carriers or hoteliers, taking into account paragraph 12. Accommodation facilities and carriers are also treated equally concerning the choice of the emission of the voucher. In fact, according to what is established in paragraph 3, the hotel, within 30 days of receiving the traveller's communication regarding the termination of the contract as a consequence of the impossibility of the service, must reimburse the amount paid for the stay or to issue a voucher to be used within one year of issue. Paragraph 3 does not specify whether it is an alternative, as paragraphs 6 and 7 do, but the combination laid down in paragraph 12 should not leave any doubts as to the classification of the obligation as an alternative. Again, regarding the accommodation facilities, the new paragraph 5 specifies that if these are unable to perform the service – as the hotel is closed or the activity suspended –, and without there being a request from the traveller, they can offer him a service replacement of equivalent or superior or inferior quality (on which the considerations made above can be assimilated), with refund of the price difference or refund the price or, otherwise, they can issue a voucher to be used within one year of issue. Thus, the frustration (we suppose, considering that the legislator has not explicitly 10 In the norm there is an imprecise use of the institutions of the termination of the contract and of the withdrawal. In paragraph 1, in fact, reference is made to the frustration due to impossibility, ex. Art. 1463 CC, also as regards the packages, when then, in paragraphs 6 and 7, an explicit reference is made to the withdrawal.