164 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY This provision was not contained in the previous version of Art. 28 and it definitely poses certain issues, which will be described below. Moreover, Art. 28, paragraph 8 expressly states that such provisions are to be deemed as overriding mandatory provisions. The same declaration is contained in Art. 88bis, paragraph 13, which reads as follows: “the provisions of the present article are overriding mandatory provisions according to art. 17, Law No. 17 of 31 May 1995 and according to art. 9 of EU Regulation No. 593/2008 of the European Parliament and of the Council of 17 June 2008”. 2.1. The voucher as a means of reimbursement Even in the original version of Art. 28, the choice of issuing a voucher is stated as an alternative way to perform the obligation deriving on the carrier from the conclusion of the transport contract, and it has been construed accordingly, thus leaving it to the carrier the right to choose among the alternative options (reimbursement or voucher), in order to duly perform the repayment obligation7. Such construction has been confirmed by Art. 88bis, paragraph 12, which states “The emission of the vouchers provided for in the present article, fulfils the reimbursement obligations and does not require any form of acceptance by the recipient”, so confirming that the choice to issue the voucher falls within the concept of alternative obligation. Indeed, the wording and the idea of providing for a voucher represented a way for the legislator to balance the interests of both parties: on one side, the travellers who were risking to lose their money due to the impossibility to leave their homes, and, on the other, the carriers – and the tourism industry in general –, whose survival was, and still is, in serious jeopardy. It is also certain that, as mentioned, Art. 28 was originally enacted, at the very beginning of the spread of the virus, as an emergency tool to minimise the consequences of the restrictions to travel for the limited portion of citizens who fell under the definition provided for in paragraph 1. Since 9 March, when the lockdown had been extended to the whole national territory, and basically the whole world had suspended entrance to foreigners in their respective territories, we cannot treat the provisions of 7 According to Italian law, particularly Art. 1285 of the Civil Code, “the debtor of an alternative obligation can be released by performing one of the two obligations but he cannot oblige the creditor to accept partial performance of either two”. Moreover, according to Art. 1286, “The right to choose [which of the two obligations to perform] lies on the debtor, if not attributed to the creditor”. Regarding packages, which will not be dealt with in this article, Italian associations of travel agencies and tour operators were very firm in claiming that the choice of offering the reimbursement or voucher lied exclusively on the organiser or seller or carrier. Such statement and such construction led, of course, to a massive offer of vouchers at every level, as well as to claims before the Antitrust Authority for unfair competition practices.
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