200 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY destination or the immediate vicinity (Article 41 paragraph 4), but, as determined by the Italian mandatory overriding provision, by the setting of “quarantine hospitalisation periods with active surveillance, or duration of the epidemiological emergency from COVID-19 in the areas affected by the infection”, as identified by the Decrees adopted by the President of the Council of Ministers, under Article 3 of Decree-Law No. 6 of 23 February. This also applies in the case of withdrawal by the organiser to the measures taken due to this emergency by national, international or foreign states authorities. In this way, an equalisation is made on the travel contract’s fate regarding the exceptional circumstances’ effects, in the place of destination, and the epidemiological emergency effects, in the place of departure, which prevents any movement. In case of withdrawal (of either the traveller or the organiser), Article 28 mentions that the organiser can offer the traveller an alternative package of equivalent or superior quality, can proceed with the reimbursement in the terms provided for in paragraphs 4 and 6 of Article 41 of the Tourism Code or can issue a voucher to be used within one year from its issuance, for an amount equal to the reimbursement due. The voucher represents the important element of novelty, not without some critical elements, with respect to the remedies provided for in Article 41, paragraph 4 of the Tourism Code, which faithfully follows Article 12 paragraph 2 of Directive 2015/2302. Moreover, the voucher is also the instrument introduced by Article 88 of Decree-Law No. 18, even before the amendments. In fact, Article 88 paragraph 1 extended the provisions of Article 28, and so the possibility of issuing the voucher, to residence contracts, for which the unexpected impossibility of performance has occurred as a result of the provisions following Article 3 of Decree-Law No. 6. In paragraphs 2 and 3 of the same Article, regarding the contracts for the purchase of admission tickets for venues of any nature (including cinemas, theatres, museums and other places of culture), the voucher was invoked as the unique restorative remedy for the frustration of the contract (ex. Art. 1463 CC) as a consequence of the impossibility of its due performance. With the amendments introduced to Articles 28 and 88, the voucher became even more at the centre of the fate of tourism contracts. Emblematic of this is paragraph 12 of Article 88bis of Law No. 27/2020, which establishes that the issue of vouchers fulfils the related reimbursement obligations and does not require any form of acceptance by the recipient. It is clear that some issues that deserve further investigation have arisen regarding the provisions in the various tourism sectors.
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