206 LEGAL IMPACTS OF COVID-19 IN THE TOURISM INDUSTRY “1. Overriding mandatory provisions are provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation. 2. Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum. 3. Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application”. In light of the provisions of paragraphs 1 and 2 of Article 9, in order to understand if Article 88bis conflicts with European law, the first point to be clarified is whether the emergency legislative intervention represents a crucial intervention to safeguard public interests. As long as the rule concerns an attempt to balance private interests, it means, in summary, to understand if in this case the interests at stake, however private, they also have a public impact. This newly introduced procedure of vouchers is evidently more favourable to the tourism businesses, as it seeks to protect them from the high risk of a financial crisis, if not outright bankruptcy. And considering that tourism represents for Italy a good part of the gross domestic product, it cannot be excluded that, although interests are being regulated between individuals (in which the roles are reversed: the “weakest” part is now the professionals, while the “strongest” part are the travellers), they are actually intervening for the public interest. This assessment does not exclude the promotion of inequalities between citizens of the various Member States, unless everyone – even individually –, adopts the use of the voucher precisely according to the methods and terms introduced in Italy; and, since Directive 2015/2302 provides for a strong harmonisation, this probably will result in conflicts14. For what concerns domestic courts, they have the authority to assess whether a given provision fits within Art. 9, paragraph 1, and have the possibility to ask the intervention of the Court of Justice. 14 With regard to air transport, the European Commission expressed itself in a communication of 18 March 2020 c (2020) 1830 "Interpretative guidelines relating to EU regulations on passenger rights in the context of the evolution of the situation connected to Covid-19".
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