IMPACT ON TOURISM CONTRACTS ACCORDING TO ITALIAN LAW 173 2. EU AND ITALIAN REGULATIONS ON TOURIST PACKAGES According to Art. 12 of the EU Directive 2015/2302 on package travels and related services, the European States are required to provide for a regulation for the occurrence of unavoidable and extraordinary circumstances before departure, which must allow the termination of the contract by the decision of either the traveller or the organiser. According to Art. 12, paragraph 2, the tourist must prove that the unforeseeable and inevitable event occurred in the place of destination or in vicinity, with a substantial impact on the execution of the trip or the transport. Once the travel agreement has been terminated, the consumer has the right to repeat the payments made. On the other hand, if the organiser is unable to perform the contract, they can terminate it, giving prompt communication, before the start of the trip, pursuant to Art. 12, paragraph 3, b). Also, in this case, the operator must return the price paid, and if said impossibility is made clear before the departure, the trip is cancelled. In Italy, legislative decree No. 62 of 2018 implemented the directive by just to transposing into Art. 41, paragraph 4 and paragraph 5, b) of the Tourism Code, the provisions of the aforementioned Art. 12. It is irrelevant that the directive requires “impossibility” in the place of destination and not in the place of departure because the current COVID-19 emergency is a global one, and the distinction is currently meaningless. With Art. 28 of the Decree-Law No. 9 of 2020, Italy confirmed the impossibility of providing travel services anywhere in the country, as is also shown in Art. 88 of the subsequent Decree-Law No. 18 of 2020. Aside from the fact that the text improperly mentioned withdrawal instead of termination, wrongly citing Art. 41 of the Tourism Code, and without mentioning operational consequences, the rule is pleonastic, since tourism within Italy and leaving Italy is forbidden, thus making it impossible to actually enjoy package travels starting from Italy (see S. Verzoni, Gli effetti sui contratti in corso dell’emergenza sanitaria legata al COVID-19, [The effects on contracts in progress of the health emergency linked to COVID-19] in Giust.civ.com, 2020, according to which “the basic point from which we need to move is that these events basically can be described as force majeure, which, by definition, makes it impossible to charge either party with a contract breach”). Moreover, in less serious situations and without such diffusion, Italian courts had enunciated the principle according to which the impossibility of effective entertainment leads to contract termination resolution due to the unforeseeable circumstances, thus making using the tourist service
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