196 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY established by Article 41 paragraph 4 of the Tourism Code, implementing Article 12, paragraph 2 of Directive 2015/2302, in which is attributed to the traveller the faculty to withdraw from the contract before the start of the package without paying any withdrawal fee, in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and significantly affecting the performance of the package. Consequently, the impediments relating to the subjective sphere of the traveller (accidents, bereave, and so on) do not operate for the purpose of free withdrawal, during the socalled exceptional circumstances. So, in order to avoid uneven interpretations regarding exceptional and unpredictable circumstances (which in the previous directive were attributable to force majeure), it is precisely the same Directive 2015/2302 which, at the 31st recital, gives an exemplary list of what can be understood as an exceptional circumstance: warfare, other serious security problems, such as terrorism, significant risks to human health, such as the outbreak of a serious disease at the travel destination, or natural disasters, such as floods, earthquakes or weather conditions that make it impossible to travel safely to the destination as agreed in the package travel contract. These exceptional, unavoidable and extraordinary circumstances operate as a justification of the right of withdrawal for both parties, the tour operator and the traveller, who can respectively terminate the contract without penalties7. Therefore, the presence of a serious epidemiological crisis would represent an objective impediment for the traveller to use the service in the country of destination, precisely because the concrete cause of the contract ceases. Moreover, the countries of destination infected by COVID-19, starting from China, have, in fact, gradually spread to a large part of the world; but at the beginning of the epidemic, not all destinations were considered of risk and banned from tourists, and this has created some problems in the management of contractual relations born before the epidemic, but to be carried out from February 2020. In the current circumstances, the real impediment to the performance, therefore the cause of frustration of the contract, must, nevertheless, be sought in the so-called factum principis, i.e. that legislative or administrative provision issued by an authority, unpredictable at the time of signing the contract, preventing the debtor from carrying out the service, an impediment that, in order to produce its effects, should not have been conceivable at the time the obligation arose. For this reason, the restrictions on the free movement of citizens, laid down by the provisions of the Italian Government, made it 7 On the use by the legislator of the institution of withdrawal, see, among others, G. Grisi – S. Mazzamuto, Diritto del turismo (Tourism law), Turin, 2017, p. 173.
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