ITALIAN LEGISLATIVE PROVISIONS 169 distinguished from the situation where the carrier cancels the journey and chooses to offer a voucher instead reimbursement or re-routing, which is precisely what Art. 88bis, paragraph 4 provides for. These situations are covered by Regulation No. 261: if the carrier proposes a voucher, this offer cannot affect the passenger’s right to instead opt for reimbursement. With the obvious outcome that only the passenger has the right to choose between reimbursement and voucher. From a theoretical point of view, the reasoning of the Commission is coherent and the Regulation is clear. The provision of paragraph 4 of Art. 88bis may certainly be incompatible with the Regulations on passengers’ rights, to the extent that it prevents passengers from resorting to the more favourable reimbursement option provided for in the same Regulation, obliging them to accept the voucher. This might also be true despite the nature of overriding mandatory provision of Art. 88bis itself, which made sense when Art. 28 was adopted (at the beginning of March), because, at that time, there was the need to regulate a limited emergency, as far as the portion of territory, and the limited number of individuals affected. We will certainly deal with several claims brought before our domestic Courts, which will raise the issue of infringements of European Regulation No. 261/2004, as well as the issue of whether the self-declared overriding mandatory provision of Art. 88bis, paragraph 4 conflicts with such regulations. Indeed, we will have to wait for the domestic Courts to stay the proceedings in order to ask the European Court of Justice for a preliminary ruling on the issue. However, we have to consider that denying the carriers the possibility to choose between the voucher and the reimbursement, could jeopardise the activity of the carrier itself: the carriers’ bankruptcy would harm passengers themselves, as they would end up not receiving money nor vouchers. In such cases, the passengers’ rights would certainly not be protected either. Therefore, we have to answer the question as to what is the interest protected by the Italian emergency provisions described above. The author believes that in a foreseeable and already difficult aviation market, in a difficult moment for the tourism industry, which represents an important resource for our country, these provisions do have a public impact. Moreover, not only is the carriers’ operativity at stake but also, for the short-medium term, competition would decrease with the consequence that prices would increase and less profitable routes would likely be eliminated with a clear further prejudice for all passengers. In this respect, it is interesting to remind that very recently, national airlines of twelve Member States addressed, through the respective Ministers of transport, a very significant request to the EU Commission. The request
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