THE ITALIAN INTERVENTION 205 impossible by the coronavirus pandemic, the counter-payment received can be returned through a voucher of the same amount valid for one year from the issue. 3.4. The conflict with European discipline Another important matter concerns the coordination of the Italian emergency measure and, in the particular case of all-inclusive travel, Directive 2105/2302, as far as consumer protection is concerned. Article 12 of the Directive grants the right to terminate the travel contract both to the traveller and to the tour operator, if there is the occurrence of unavoidable and extraordinary circumstances before departure. In both cases, the operator is obliged to return what was received to the traveller, without undue delay and within 14 days from termination. With the previous Article 28 and even more so with Article 88bis of Law No. 27 2020, which is an overriding mandatory provision13, the consequences in the consumer’s sphere have been substantially modified against him. He is no longer guaranteed a refund of the amount paid in favour of a voucher – a title corresponding to the value of the refund which grants him the right to enjoy a holiday of his choice, in the short future of one year –, and the terms have been changed to his detriment. In fact, as established by paragraphs 6 and 7 of Article 88bis, the traveller will receive the voucher only after the individual service providers have issued a voucher (or refund), in favour of the tour operator. Even if the service providers do not do it, the tour operator will still have to issue his voucher no later than 60 days from the scheduled departure date. It is clear that the aforementioned provision poses a coordination problem with European Legislation. Law No. 27/2020, Article 88bis, paragraph 13 mentions Article 9 paragraph 1 of Regulation No. 593/2008 (Rome I), which is the law that governs contractual conflicts. That article says as follows: 13 Expressly, Article 88bis, paragraph 13 provides that "the provisions of this article constitute overriding mandatory provisions pursuant to Article 17 of Law No. 218 of 31 May 1995 and Article 9 of Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008. Overriding mandatory provisions are intended as rules which, in consideration of their object and purpose, must be applied despite the reference to foreign law”. As regards the overriding mandatory provisions, see: C. Focarelli, Lectures on private international law (Lezioni di diritto internazionale privato), Perugia, 2006, p. 71 and following; T. Treves, Imperative and overriding mandatory provisions of application in the Rome Convention of 19 June 1980 (Norme imperative di applicazione necessaria nella Convenzione di Roma del 19 di Giugno 1980), RDIPP. P. 25; V. Villani, Community action on private international law (L’azione comunitaria in materia di diritto internazionale private), in Riv. dir. Eur., 1981, p. 406.
RkJQdWJsaXNoZXIy MTE4NzM5Nw==