Collective Commentary about the New Package Travel Directive

ARTICLE 12 | FRANCESCO TORCHIA 287 expects that following the deposit payment, the customer is unable to cancel the booking and to withdraw from the contract, without incurring any responsibility for the failure of the contract. Given the above, it should also be noted howArticle 36, Paragraph 1, letter d), acts an exception to the regulations of Article 1385 of the Civil Code in the event that the tourist withdraws because of a “serious failure of the counterparty” after paying the deposit . Actually, according to theCivil Code regulation the contractor that withdraws because of the default of the person who received the deposit has the right to demand twice what was paid, not just the amount initially paid. Because of this, the Tourism Code law has decreased the level of protection of tourists in comparison to what is established by the common law 7 . Another consequence of the abovementioned regulatory provision is that the contract automatically foresees this type of legal withdrawal, both in the presence of gaps and in the replacement of inappropriate clauses. However, since the Tourism Code does not provide a similar regulation to the one contained in Article 143 of the Consumer Code, according to which: “the rights attributed to the consumer by the code are essential” , such a conclusion can only be obtained by a systematic and an axiological interpretation of themandatory nature of other implementing regulations of Directive 90/314 / CEE. Regarding instead the case in which the tourist is unable to leave and has already paid the full price, from the aforementioned regulation has arisen a further debate about the existence or not of a final deadline for the executionof the right of withdrawal and the retroactive effectiveness, or less, of the dissolution of the binding condition. This happens because, according to the regulation, it would seem to only allow the repetition of the amount paid as a deposit and not as the entire fee. Nor, according to the authoritative doctrine 8 , can the problem be solved by referring to the regulation expressedbyArticle 1373of theCivilCode (unilateral withdraw).Moreover, according to the aforementioned regulation the withdrawal produces a retroactive effect only in the case of contracts with instant or deferred execution, stating that the contract has yet to be executed. Consequently, making a brief aside to explore in depth the negotiation qualification of the tourist package contract sale (which according to the 7 According to C. ALVISI, Recesso e disdette turistiche , in Dir. tur., 2005, 3, 217 ss., it would be an unwanted consequence by the legislation. Moreover, the regulation would be the effect of a formulation error, which could have been amended with the Tourism Code. The author adds that the right of withdrawal for legal reasons required by Article 36, Paragraph 1, Letter d), does not implement any regulation of the European Directive. Therefore, it would not even be wise to think that, as a result of the change in the tourism code of the sale of contract travel packages, the aforementioned right of withdrawal of the tourist has become available. 8 C. ALVISI, Il diritto del Turismo nell’ordine giuridico del mercato ,Turin, 2105, 204.