International Journal of Tourism, Travel and Hospitality Law Abu Dhabi | Estoril | Milan | Palma | Parma | Porto Alegre | Rende Sassari | Salamanca | Travna | Zagreb 1 | 2025
International Journal of Tourism, Travel and Hospitality Law 1 | 2025
ISSN 2184-8793 ISSNe 2975-9056 All Rights Reserved. No part of this journal may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the publisher. A written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. This work is published for general guidance only and is not intended as a substitute for professional advice. While every precaution has been taken in the preparation of the text, the publishers and authors can accept no responsibility for the consequences of any errors, however caused. This edition was published in 2025 by ESHTE, alongside other universities and institutions And
Contents Chiara Tincani A Proposal for a directive for more effective protection of tourists 1 I. The factors that led to the review of Directive 2015 /2302 / EU 1 II. The proposed modification of the notion of tourist package 3 III. The proposed amendment of the rules on the payment of a part of the consideration by way of advance payment 8 IV. The Proposal to amend the regulation on the termination of the relationship before departure due to unavoidable and extraordinary circumstances and the Proposal to regulate so-called vouchers 10 V. The Proposal to amend the rules for the protection of tourists in the event of insolvency of the organisers and the Proposal to regulate relations between companies 12 Angelo Venchiarutti Termination of the package travel contract due to unavoidable and extraordinary circumstances 17 I. Foreword 17 II. The right of travellers to terminate the package travel contract 18 III. Ex-post evaluations of the PTDirective 20 IV. The proposal for amending the PTD 22 V. CJEU case law 24 VI. The interpretation of the Court of plateau de Kirchberg 27 VII. The traveller’s withdrawal according to Italian case law 28 VIII. As a conclusion 29 Aránzazu Pérez Moriones The implementation of ADR in passengers air transport: an analysis of the Spanish experience 31 I. Introduction 32 II. Supervision and enforcement with community regulations concerning air passenger protection 35
CONTENTS III. The alternative dispute resolution procedure regulated by order tma/201/2022 IV. Final considerations 58 V. Bibliography 60 Xavier Delpech Le projet de révision du règlement (CE) 261/2004 sur les droits des passagers aériens 6 The project of reform of Regulation (EC) 261/2004 on the rights of air transport passengers I. Contenu 64 II. Critiques 65 Conclusion 67 Enrico Gragnoli The Corporate Sustainability Due Diligence Directive, employment and tourism companies 69 I. Transnational production and logistic structures, court action resources of mature capitalistic Countries and diligent control performed by the parent companies 70 II. The French and German legislation 72 III. The Directive and its relevance for tourism companies 74 IV. The objectives of the European Union Directive 76 V. The nature of companies’ responsibility and liability 78 VI. The Directive, fundamental rights and the protection of the environment and of work 80 References 82 Paula Casadesus Ripoll The impact of artificial intelligence regulations on the tourism industry 85 I. Introduction 85 II. Artificial Intelligence Act overview 86 III. Concept of Artificial Intelligence system under the Artificial Intelligence Act 87 IV. Navigating the Artificial Intelligene Act for the tourism industry 91 V. Conclusion 94 43 3
Milana Ranković, Jakša Vuković The Potential of Artificial Intelligence in Montenegrin Tourism: Legal Challenges and Opportunities 95 I. Introduction 96 II. The Role of AI Tourism 97 III. Overview of current legal landscape for AI in Montenegrin Tourism 99 IV. Perspectives for implementation of AI in Montenegrin tourism 102 V. Legal and Ethical Challenges 104 VI. Trends in Legal Regulation 105 VII. Conclusion 106 Cesare Galli Wine tourism and sustainability: new “Green Trademarks” and European rules on ecological communication as a driver for the development of environmentally friendly winery and tourism 107 I. Introduction 107 II. The reason why intellectual property and the market are critical for sustainable growth, including in the wine industry. 108 III. The “Greenwashing Directive” and the centrality of correct consumer information also in relation to sustainability and ecological transition 111 IV. “Green Marks” and development opportunities for an increasingly environmentally friendly tourism and wine industry 113 Paola C.D. de Pascalis Tourism and fiscal leverage: shadows and lights of a delicate balance between economic growth, fundamental rights and environmental sustainability 117 I. Introduction 118 II. The shadows: the role of the tourist tax in the evolution of the tourism sector’s development 119 III. The shadows: the effects of digitalization on the tourism sector in the prism of fundamental rights and taxation 120 IV. The lights: Sustainable tourism and environment: towards a new vision of tourism taxation 121 V. The lights: Cultural heritage and environmental taxation 122 VI. Conclusions 124 Bibliography 124 CONTENTS
CONTENTS Margarida Rosado da Fonseca The sweet&sour taste of tourism and competition law interaction 127 I. Preliminary remarks 128 II. A bird’s eye on the application of competition rules 130 III. A glimpse of the main areas of competition and examples 132 IV. Final remarks 142 V. Updated remarks 144 Rosaria Garozzo The growing influence of competition law in tourism 149 I. Overview 149 II. The European framework 151 III. ICA’s Advocacy activity 153 IV. ICA Investigations 155 V. Conclusion 162 Francesco Gaspari, Luigi Cameriero Smart cities and tourism 163 Opportunities, problems and prospects of the administrative organization of hospitality I. Neologisms of the new polis 164 II. Trajectories in favor of a visionary and sustainable urban idea 167 III. Land governance from destruction with method to regeneration with care 170 IV. Landscape emics and land ethics 173 V. “Criticcity” of digital heritage 175 VI. Hospitality icons and tourism clinic 179 VII. A brief obiter: artificial intelligence ahead of the hydrosphere 184 VIII. Heuristics of good administration 186 IX. Case history 187 X. Palinodie of the smart city 190 Carlos Torres An undetermined fall at the airport: a case of strict liability of a French travel agent 193 I. Introduction 193 II. Case background and procedural history 194 III. The strict liability of travel agencies (responsabilité de plein droit) 195
XI CONTENTS IV. Exonerating circumstances and burden of proof 195 V. EU legislative competence on Private Law 196 VI. Compatibility of responsabilité de plein droit with the New Package Travel Directive 198 VII. Initial considerations on the liability of travel agents 199 VIII. The evolution since the seventies 201 IX. Final remarks 206 Ibero American Chapter Francisca Ramón Fernández La cultura del vino en españa y su aplicación en el turismo: referencia a la legislación aplicable 209 Introducción 210 I. La cultura del vino y el turismo del vino 210 Conclusiones 234 Bibliografía 234 Referencias legislativas 238 Belén Ferrer Tapia Últimas novedades en el traslado del equipaje de mano en los aeropuertos europeos 241 I. El control de lags, ordenadores portátiles y tablets en aeropuertos de la ue 242 II. El control de las dimensiones y del precio por el traslado del equipaje de mano 252 Bibliografía 262
A Proposal for a directive for more effective protection of tourists Chiara Tincani1 I. The factors that led to the review of Directive 2015 / 2302 / EU. – II. The proposed amendment of the notion of package tour. – III. The proposed amendment of the rules on the payment of a part of the consideration by way of advance payment. – IV. The Proposal to amend the regulation on the termination of the relationship before departure due to unavoidable and extraordinary circumstances. – V. The Proposal to amend the rules for the protection of tourists in the event of insolvency of the organisers and the Proposal to regulate relations between companies. The essay analyses the Proposal for a Directive of the European Parliament and of the Council, amending Directive 2015 / 2302 / EU, which attempts to resolve doubts that have arisen on provisions that are considered unclear, such as the definition of a package, which covers so - called click - through packages or related services, of which it gives an overly articulated description. The aim is simplification, with clearer rules that can be easier to apply. Keywords: Directive 2015/2302/EU, Proposal, Amendments, Protection, Tourists. I. THE FACTORS THAT LED TO THE REVIEW OF DIRECTIVE 2015 /2302 / EU Directive 2015 / 2302 / EU on package travel intervened twenty - five years after the adoption of Directive 1990 / 314 / EEC, with the aim of adapting the regulatory framework to the changed socio - economic context (F. J. Melgosa Arcos 2020, 51 ff.). Technological progress and the frequent use of computerised tools have highlighted the inadequacy of the previous regulation, conceived at DOI 10.60559/ijtthl2025-001 1 University of Verona.
a time when the intermediary and the travel organiser mostly used structures rooted in the territory. Thus, for the second recital of Directive 2015 / 2302 / EU, “the traditional distribution channels have been joined by the Internet (...), which has become an increasingly important medium through which tourist services are offered or sold. The latter are not only combined in the form of traditional pre - arranged packages, but are (...) increasingly customised. Many of these combinations (...) are (...) in a ‘grey area’ or do not fall within the scope of Directive 1990 / 314 / EEC at all”. The Directive 2015 / 2302 / EU adopted an articulated notion of package (Z. Chen, 2021, 886 ff.; F. J. Melgosa Arcos 2020, 65 ff.), precisely in an attempt to embrace the different ways in which several services can be combined. For the fifth recital, an area without internal borders must be created, in which the free movement of services is ensured. The harmonisation of rights and obligations arising from package contracts was deemed necessary in order to promote a high level of protection for travellers and the competitiveness of businesses. On a global level, between 2020 and 2022, the epidemic situation, due to the rapid spread of the COVID - 19 virus, disrupted the competitive dynamics, with the risk that the entire sector would enter an irreversible crisis; in fact, the contracts stipulated in that period were terminated and no new bookings were made. This created liquidity problems for many organisers, so that either some travellers did not obtain a refund of their compensation or it was paid with a considerable delay with respect to the fourteen - day deadline provided for in Article 11(5) of Directive 2015 / 2302 / EU. In order to preserve the immediate liquidity of operators, many States have resorted to unusual solutions, such as the recognition of a credit equal to the consideration paid, a credit that could only be exercised by entering into another agreement, within a certain period of time from the termination of the first one. More generally, in order to contain the considerable damages suffered by companies, many Countries, including Italy, have left the choice between returning the original consideration and issuing the so - called voucher to the company itself, which has almost always opted for the second solution, preferring to perform a service similar to the original one at a later date, rather than return the consideration, with the risk of financial difficulties. In Recommendation 2020 / 648, in an attempt to rebalance the relationship between operators and consumers, the Commission considered the offer of vouchers legitimate, but made its effects conditional on the customer’s acceptance. 2 CHIARA TINCANI
More generally, the experience of the epidemic has highlighted some of the limitations of Directive 2015 / 2302 / EU. Many Countries called for more clarity on the notion of “unavoidable and extraordinary circumstances”2 and for a regulation of the offer of vouchers as an alternative solution to the return of the consideration, in case of termination of the relationship. At the same time, some States have emphasised the need to strengthen the guarantees for advance payments made by travellers, in view of the difficulties they have had in recovering these sums, due to the financial crises of the organisers, often, in turn, caused by their failure to return sums paid by them to the service providers, in particular the airlines. In fact, after having demanded full compensation in advance, these companies were unable to meet the tour operators’ requests for reimbursement, generating a crisis that was fatal for many travel agencies. Therefore, the Commission has proposed a revision of Directive 2015 / 2302 / EU, so that relations between companies are also regulated, with the possible obligation for service providers to return the fees received within a shorter period than the fourteen days imposed on them by Article 11 of Directive 2015 / 2302 / EU. II. THE PROPOSED MODIFICATION OF THE NOTION OF TOURIST PACKAGE The Proposal for a Directive of the European Parliament and of the Council, amending Directive 2015 / 2302 / EU, attempts to resolve doubts that have arisen on provisions that are considered unclear, such as the definition of a package, which covers so - called click - through packages or related services, of which it gives an overly articulated description. The aim is simplification, with clearer rules that can be easier to apply. Directive 2015 / 2302 / EU has broadened the notion of package, since, with the use of telematic means, the ways in which travellers select or combine the requested services have increased (I. Gonzalez Cabrera 2020, 135 ff.). For Article 3(2)(a)3 of Directive 2015 / 2302 / EU, there is a package when at least two services are offered by a single 2 Cf. Article 12(2) of Directive 2015 / 2302 / EU, according to which “the traveller shall have the right to terminate the contract (...) before the beginning of the package without paying termination costs in the event of unavoidable and extraordinary circumstances occurring at the place of destination or in its immediate vicinity and having a substantial effect on the performance of the package or the carriage of passengers to the destination”. 3 According to Article 3(2)(a) of Directive 2015 / 2302 / EU, “’package’ means a combination of at least two different types of travel services for the purpose of the same trip or holiday, if: (a) those services are combined by one trader, including at the request of or in accordance with the selection of the traveller, before a single contract on all services is concluded”. 3 A PROPOSAL FOR A DIRECTIVE FOR MORE EFFECTIVE PROTECTION OF TOURISTS
professional, even at the request of the consumer, before a contract is concluded. This first hypothesis includes both traditional pre - packaged tours, for which the traveller has no active selection role, and so - called tailor - made packages, in which the holiday is constructed together with the tourist, who can choose the services or opt for some of those proposed. Directive 2015 / 2302 / EU took over the notion of package holidays from the previous Directive 1990 / 314 / EEC and regulated the hypothesis of the tailor - made one, not contemplated by the former, although, even then, it was a widespread hypothesis. The novelties of Directive 2015 / 2302 / EU are concentrated in Article 3(2) (b)4, which describes five ways in which services can be composed, regardless of whether separate contracts have been concluded with suppliers and whether they are stipulated at a physical location or by the use of telematic means (S. Mason - M. Gatenby 2016, 7 ff.). The first hypothesis requires the services to be selected at a single point of sale, at a time before the traveller consents to the payment, pursuant to Article 3(2)(b)(i)5. The Proposal for a Directive of the European Parliament and of the Council, amending Directive 2015 / 2302 / EU, did not suggest any change, although perhaps it would have been appropriate to shift the time limit within which the tourist must select the services from the moment when he expresses his willingness to make payment to the moment when he does so. Indeed, it is not always easy to prove at what stage of the negotiation the traveller decides to pay (M. Brignardello 2023, 42 ff.). At the same time, the Proposal for a Directive of the European Parliament and of the Council, amending Directive 2015 / 2302 / EU, intends to broaden this case and, pursuant to Article 3(2)(b)(i)6, a tourist package also exists if, at a single point of sale, some services are booked within three hours of acceptance, 4 For Art. 3(2)(b) of Directive 2015 / 2302 / EU, “irrespective of whether separate contracts are concluded with individual travel service providers, those services are (i) purchased from a single point of sale and those services have been selected before the traveller agrees to pay, (ii) offered, sold or charged at an inclusive or total price, (iii) advertised or sold under the term ‘package’ or under a similar term, (iv) combined after the conclusion of a contract by which a trader entitles the traveller to choose among a selection of different types of travel services, or (v) purchased from separate traders through linked online booking processes where the traveller’s name, payment details and e-mail address are transmitted from the trader with whom the first contract is concluded to another trader or traders and a contract with the latter trader or traders is concluded at the latest 24 hours after the confirmation of the booking of the first travel service”. 5 According to Art. 3(2)(b) of Directive 2015 / 2302 / EU, “those services are: (i) purchased from a single point of sale and those services have been selected before the traveller agrees to pay”. 6 For Article 3(2)(b)(i) of the Proposal, “irrespective of whether separate contracts are concluded with individual travel service providers: (i) those services are purchased from a single point of sale and - have been selected before the traveller agrees to pay, or - other types of travel services are booked within three hours after the traveller agreed to pay for the first travel service, or - other types of travel services are booked within 24 hours after the traveller agreed to pay for the first travel service and if, before the traveller agreed to pay for the first travel service, the trader invited the traveller to subsequently book one or more additional types of travel services”. 4 CHIARA TINCANI
or if, within twenty - four hours of the original consent, the operator invites the consumer to select one or more additional activities. The characterising element of the notion of package would be the close correlation between the services, which, if they are not contextual, must be planned within a circumscribed time span; if they are not, the pre - ordination, which directs to the realisation of the same journey, would be lacking. The second scenario of Directive 2015 / 2302 / EU provides that services are “offered, sold or invoiced at a flat - rate or global price”, by virtue of Article 3(2)(b)(ii)7. From the outset, some perplexity had arisen, since the provision considers the flat - rate fee as an alternative to the global one, as if the two terms were not synonymous (M. Brignardello 2023, 42 ff.). If this were the case, the directive should have clarified the differences. Anyway, the purpose of the rule is to include all hypotheses of organised travel, regardless of the method of payment. For the sake of clarity, provision should also have been made for the case in which the trader decides to issue separate invoices for individual services, as this solution often has evasive intentions. The Commission’s Proposal redrafts the provision and includes the reference to “possible separate invoicing”8 . According to Article 3(2)(b)(iii)9 of Directive 2015 / 2302 / EU, a package needs that the services be “advertised or sold under the designation ‘package’ or (...) similar”. Therefore, any trip for which this designation is used falls within the scope of the Directive. Even if not indicated, the opposite principle operates whereby travel is not subject to such regulation if it is not defined as a package. The Commission has not suggested any changes and, moreover, the description of the original fourth hypothesis10 , according to which services may be combined after the conclusion of a contract by which the organiser allows a choice between several services, should remain unchanged. The hypothesis on which the Proposal dwelled most strongly is the last11, according to which services can be selected from several operators by means of 7 According to Article 3(2)(b)(ii) of Directive 2015 / 2302 / EU, “irrespective of whether separate contracts are concluded with individual travel service providers, those services are: (ii) offered, sold or charged at an inclusive or total price”. 8 According to Article 3(2)(b)(ii) of the Proposal, “those services: (ii) are offered, sold or paid at an inclusive or total price, regardless of any separate billing”. 9 According to Article 3(2)(b)(iii) of Directive 2015 / 2302 / EU, “those services: iii) are advertised or sold under the term ‘package’ or under a similar term”. 10 According to Article 3(2)(b)(iv) of Directive 2015 / 2302 / EU, “those services: (iv) are combined after the conclusion of a contract by which a trader entitles the traveller to choose among a selection of different types of travel services”. 11 According to Article 3(2)(b)(v) of Directive 2015 / 2302 / EU, “those services: v) are purchased from separate traders through linked online booking processes where the traveller’s name, payment details and e-mail address are transmitted from the trader with whom the first contract is concluded to another trader or traders and a contract with the latter trader or traders is concluded at the latest 24 hours after the confirmation of the booking of the first travel service”. 5 A PROPOSAL FOR A DIRECTIVE FOR MORE EFFECTIVE PROTECTION OF TOURISTS
linked processes of telematic booking, in which the traveller’s name, payment details and e - mail address are transmitted to others by the professional with whom the first agreement is concluded and the subsequent agreement is stipulated no later than twenty - four hours after the confirmation of the booking of the first service. So - called click - through packages fall into this category (C. Berenguer Albaladejo 2016, 38 ff.; S. Mason - M. Gatenby, 2020, 8 ff.), which allow contracts to be concluded with separate providers in a linked process. For example, on an airline’s website there is a link that redirects to a hotelier’s page and from there, using the same system, it is possible to obtain other bookings (B. N. Romano - C. Criscione 2019, 95 ff.). Thus, the first company does not merely provide a telematic connection, but transmits the traveller’s name, payment details and e - mail address to the other. So, the tourist can select subsequent services without entering his data again. This does not include links placed on a site for advertising purposes (J. De Almeida Vidal 2020, 383; M. J. Reyes Lopez 2020, 351 ff.). The Commission’s Proposal aims to simplify the definition of these packages12; without prejudice to the articulated booking process, it is sufficient to transmit personal data as an alternative, so much so that the Proposal inserts the expression “or any other personal data of the traveller” at the end of the list. Finally, since the transfer of information presupposes a close correlation between the services, the reference to twenty - four hours has seemed superfluous. Directive 2015 / 2302 / EU has introduced the new case of related services13; this case too must include at least two services in the same trip (J. A. Torres Lana 2020, 96 ff.) and is characterised by the presence of a professional whose task is to facilitate the realisation without assuming the role of organiser (A. P. Ribeiro Café 2017, 361 ff.). He may proceed in two ways, which are set out exhaustively in Directive 2015 / 2302 / EU. At the time of a single visit or a single contact with his company, the professional may facilitate the selection of services with separate payment14 or he may facilitate the selection of a further service with 12 According to Article 3(2)(b)(v) of the Proposal, “those services: v) are purchased from separate traders through linked online booking processes where the traveller’s name, payment details, e-mail address or the traveller’s other personal data are transmitted from the trader with whom the first contract is concluded to another trader or other traders”. 13 For Art. 3(5) of Directive 2015 / 2302 / EU, “‘linked travel arrangement’ means at least two different types of travel services purchased for the purpose of the same trip or holiday, not constituting a package, resulting in the conclusion of separate contracts with the individual travel service providers, if a trader facilitates: (a) on the occasion of a single visit or contact with his point of sale, the separate selection and separate payment of each travel service by travellers; or (b) in a targeted manner, the procurement of at least one additional travel service from another trader where a contract with such other trader is concluded at the latest 24 hours after the confirmation of the booking of the first travel service”. 14 Pursuant to Article 3(5) of Directive 2015/2302/EU, “‘linked travel arrangement’ means at least two different 6 CHIARA TINCANI
another operator, if the contract is concluded no later than twenty - four hours after the original booking15 ; there must be no flat - rate fee. As an example, the first hypothesis occurs when the traveller with a visit or contact with the point of sale first books a flight and then a hotel stay, with separate payments (C. Berenguer Albaladejo 2016, 41 ff.). It is difficult to establish the uniqueness of the commercial initiative (M. McDonald 2020, 81 ff.). Again by way of example, the second hypothesis occurs when, having opted for air transport and received a connection from the airline offering a hotel stay, the traveller opts for that opportunity within twenty - four hours (M. McDonald 2020, 81 ff.). This solution differs from click - through packages in that there is no transmission of personal data. The Commission has proposed a simplified notion of linked services and wants to eliminate the first hypothesis, due to its similarities with the concept of package16. Thus, bookings at a single point of sale made within a short period of time are covered by this notion. Finally, the Proposal seeks to clarify that neither a package nor a related service are those of transport, accommodation or car hire when combined with others, as defined in Article 3(1)(d), if the consideration for the latter does not represent more than twenty - five per cent of the value of the combination17; the Commission wished to offer an unambiguous parameter to establish when these services express that substantial part of the journey to which Directive 2015 / 2302 / EU refers in its original wording18. The criterion leaves one somewhat types of travel services purchased for the purpose of the same trip or holiday, not constituting a package, resulting in the conclusion of separate contracts with the individual travel service providers, if a trader facilitates: (a) on the occasion of a single visit or contact with his point of sale, the separate selection and separate payment of each travel service by travellers”. 15 Pursuant to Article 3(5) of Directive 2015 / 2302 / EU, “‘linked travel arrangement’ means at least two different types of travel services purchased for the purpose of the same trip or holiday, not constituting a package, resulting in the conclusion of separate contracts with the individual travel service providers, if a trader facilitates: (b) in a targeted manner, the procurement of at least one additional travel service from another trader where a contract with such other trader is concluded at the latest 24 hours after the confirmation of the booking of the first travel service”. 16 According to Article 3(5) of the Proposal, “‘linked travel arrangement’ means a combination of different types of travel services, not falling under the definition of a package in point 2, where, a trader which is party to a contract on the provision of a travel service and receives payments by or on behalf of a traveller invites a traveller to book additional type of travel service from another trader for the purpose of same trip or holiday and where a contract on the provision of an additional travel service is concluded at the latest 24 hours after the confirmation of the booking of the first contract”. 17 According to the Proposal, “a combination of travel services where not more than one type of travel service as referred to in point (a), (b) or (c) of point 1 is combined with one or more tourist services as referred to in point (d) of point 1 is not a package if the latter services: (a) do not account for at least 25 per cent of the value of the combination and are not advertised as and do not otherwise represent an essential feature of the combination”. 18 According to Article 3(2) of Directive 2015 / 2302 / EU, “a combination of travel services where not more than one type of travel service as referred to in point (a), (b) or (c) of point 1 is combined with one or more tourist services as referred to in point (d) of point 1 is not a package if the latter services: (a) do not account for a significant proportion of the value of the combination”. 7 A PROPOSAL FOR A DIRECTIVE FOR MORE EFFECTIVE PROTECTION OF TOURISTS
perplexed, because the supplementary service could have a lower value than accommodation or transport, but be the determining reason for the overall transaction; think of the guided tour for which a lower price is charged than for accommodation (M. Brignardello 2023, 36 ff.) and, in such a case, the tourist could not avail himself of the protection provided by Directive 2015 / 2302 / EU, since the combination would not result in a package. Moreover, for the same consideration, it could lead to the supplementary service provided by the hotelier exceeding the twenty - five per cent threshold if the accommodation is granted for a small consideration, because, for example, it is in the low season. This would subject the hotelier to the stricter liability regime of the travel organiser, while businesses granting accommodation for a higher fee would escape the application of Directive 2015 / 2302 / EU. III. THE PROPOSED AMENDMENT OF THE RULES ON THE PAYMENT OF A PART OF THE CONSIDERATION BY WAY OF ADVANCE PAYMENT Article 5 of Directive 2015 / 2302 / EU relates to the definition of the information obligation incumbent on the organiser and travel intermediary. The provision contains an articulated list of information to be provided prior to the conclusion of the contract and the rule is justified because the package is a set of services (E. Faletti 2008, 97 ff.; P. Venditti 2018, 29 ff.) and only with a detailed description can the tourist become aware of the offer and, if appropriate, compare it with others. The epidemic situation has highlighted some limitations of the regulation. In particular, the Proposal for a Directive of the European Parliament and of the Council, amending Directive 2015 / 2302 / EU, has focused on Article 5(1)(d), whereby the manner of payment, including the possible percentage amount of the consideration to be paid on account and the timetable for the payment of the balance and for the presentation of the necessary financial guarantees must be communicated19 . The practice of requesting advance payments exposed many companies to the risk of insolvency due to the difficulty of repaying significant amounts after the termination of the relationship. The Commission proposed that Article 5(1) 19 According to Art. 5(1)(d) of Directive 2015 / 2302 / EU, “the arrangements for payment, including any amount or percentage of the price which is to be paid as a down payment and the timetable for payment of the balance, or financial guarantees to be paid or provided by the traveller” must be communicated. 8 CHIARA TINCANI
(d) be reworded so that “the main characteristics of the travel services are: (...) d) the arrangements for payment, including any amount or percentage of the price which is to be paid as a down payment and the timing for payment of the balance, in accordance with Article 5a, or financial guarantees to be paid or provided by the traveller”. The Proposal refers to the new Article 5a, according to which the organiser could not demand a down payment of more than twenty - five per cent of the total remuneration, nor the balance before twenty - eight days before the beginning of the trip. It could demand a higher sum for advance payments to suppliers or higher costs incurred. Furthermore, according to Article 5(1)(g) of Directive 2015 / 2302 / EU, the tourist must be informed of the power to terminate the relationship before the beginning of the travel, except for the payment of the costs of termination or those required by the organiser pursuant to Article 12(1)20. The Commission has suggested including the further hypothesis of termination due to the occurrence of unavoidable and extraordinary circumstances for which no reimbursement of any costs incurred by the undertaking21. Pursuant to Article 6 of Directive 2015 / 2302 / EU, pre - contractual information must be mentioned in the text of the agreement, and Article 7(2), supplements the provision. In particular, for Article 7(2)(b)(i), the organiser must make the tourist aware that he alone is responsible for the exact performance of the services selected and, for Article 7(2)(b)(ii), the organiser must provide assistance if the traveller is in difficulty. The Proposal suggests extending the subject matter of Article 7(2)(b)(i) and (ii)22; the organiser should inform that he is not only liable for the successful completion of the travel, but also for the failure to return any refunds due as a result of the termination of the relationship or the modification of the contract and for the failure to assist the consumer 20 According to Article 12(1) of Directive 2015 / 2302 / EU, “where the traveller terminates the package travel contract under this paragraph, the traveller may be required to pay an appropriate and justifiable termination fee to the organiser. The package travel contract may specify reasonable standardised termination fees based on the time of the termination of the contract before the start of the package and the expected cost savings and income from alternative deployment of the travel services”. 21 According to Article 5(1)(g) of the Proposal, “information that the traveller may terminate the contract at any time before the start of the package in return for payment of an appropriate and justifiable termination fee, or, where applicable, the standardised termination fees requested by the organiser, in accordance with Article 12(1), and that the traveller may terminate the package travel contract without paying any termination fee due to unavoidable and extraordinary circumstances as specified under Article 12(2)”. 22 Pursuant to Art. 7(2)(b)(i) and (ii): “(i) the organiser is responsible for the proper performance of all travel services included in the contract in accordance with Article 13, for any refunds due to the termination of or changes to a contract, and for providing assistance if the traveller is in difficulty in accordance with Article 16; (ii) where applicable, (...) the traveller may also contact the organiser via the retailer”. 9 A PROPOSAL FOR A DIRECTIVE FOR MORE EFFECTIVE PROTECTION OF TOURISTS
in difficulty. In such case, the latter may contact the organiser through the intermediary. The intention of the Proposal is to strengthen the protection of the traveller, with an aggravation of the position of the organiser, who could be warned by the intermediary with delay; the late intervention of the former could generate an innocent liability. Finally, the Proposal suggests the introduction of a further paragraph, the second bis, which would specify that the information form in Annex 1 of the Directive should be attached to the negotiation text, so that it can be permanently available to the traveller. IV. THE PROPOSAL TO AMEND THE REGULATION ON THE TERMINATION OF THE RELATIONSHIP BEFORE DEPARTURE DUE TO UNAVOIDABLE AND EXTRAORDINARY CIRCUMSTANCES AND THE PROPOSAL TO REGULATE SO-CALLED VOUCHERS According to Article 12(2) of Directive 2015 / 2302 / EU, the tourist may terminate the relationship before the start of the holiday if unavoidable and extraordinary circumstances occur at the place of destination or in its immediate vicinity. The impediment must be such that it substantially jeopardises the holiday. In this case, the tourist may request the return of payments made and the refund must be made without undue delay and, in any case, no later than fourteen days after termination. According to Article 3(12) of the Directive, the concept of “unavoidable and extraordinary circumstances” includes “a situation beyond the control of the party who invokes such a situation and the consequences of which could not have been avoided even if all reasonable measures had been taken”. The definition describes the character of inevitability (A. Pepe 2017, 254 ff.), but does not set any criteria for determining what is the extraordinary (M. Wukoshitz 2020, 183 ff.). The Proposal retains the notion of “unavoidable and extraordinary circumstances”, but extends its scope with reference to the place of departure or residence of the traveller. It is unclear why an unavoidable and extraordinary event could not be relevant for the purposes of Article 12(2) if it occurs at the place of departure (C. Camacho Pereira 2016, 72 ff.); this inconsistency emerged during the epidemic. The Proposal requires that the impediment affects the journey “significantly” and, like Directive 2015 / 2302 / EU, does not clarify whether the substantial character is to be understood in objective or subjective terms, i. e. whether the holiday is to be significantly impaired by extraordinary events affecting 10 CHIARA TINCANI
all consumers or whether the journey may be precluded only to certain persons, for example with mobility difficulties, or whether both elements may be considered. Instead, the Proposal suggests the insertion of a further paragraph, the third bis, defining the function to be assigned to the so - called “official notices”; thus, if they are issued by the authorities of the Country of departure or residence of the tourist or by those of the Country of destination and advise against travelling to certain destinations or if they warn tourists that they will be subject to serious restrictions in the place of destination or in that of departure or residence upon their return, these elements may be taken into account for the termination of the relationship and lead to a request for reimbursement, pursuant to Article 12(2) and (3)(b). Indeed, in such cases, the organiser may also find himself unable to perform the service. The Proposal confirms that repayments should be made within fourteen days of termination and would like States to introduce or maintain mechanisms to ensure repayments within fourteen days, after notifying the Commission and the central contact points of the other States, pursuant to Article 18(2)23. Furthermore, any State co - financing is subject to the Commission’s approval under the State Aid Guidelines. For the first time, with the provision of a new Article 12 bis, the Proposal attempts to regulate the issuance of so - called vouchers as an alternative solution to reimbursement. The traveller would have to be informed in writing that there is no obligation to accept this solution, but could request a refund within the fourteen - day time limit. The voucher should have a value corresponding to the amount paid, and the traveller could not opt for a refund if he had explicitly accepted the voucher in writing. However, before its use or expiry, the parties may agree on a refund. In this case, the organiser’s consent is required and, therefore, the choice is not left to the consumer’s discretion. The voucher is effective for twelve months from when it is accepted and can be extended once, for a further twelve months, by written agreement. On the basis of the Proposal, if the right arising from the voucher is not exercised within the prescribed time limit, the organiser is obliged to return the consideration received within fourteen days, without even the need for an application by the traveller. The right attached to the voucher may be transferred to another traveller at no additional cost. 23 According to Article 18(2) of Directive 2015 / 2302 / EU, “Member States shall designate central contact points to facilitate the administrative cooperation and supervision of organisers operating in different Member States. They shall notify the contact details of those contact points to all other Member States and the Commission”. 11 A PROPOSAL FOR A DIRECTIVE FOR MORE EFFECTIVE PROTECTION OF TOURISTS
V. THE PROPOSAL TO AMEND THE RULES FOR THE PROTECTION OF TOURISTS IN THE EVENT OF INSOLVENCY OF THE ORGANISERS AND THE PROPOSAL TO REGULATE RELATIONS BETWEEN COMPANIES The Proposal for a Directive of the European Parliament and of the Council, amending Directive 2015 / 2302 / EU, suggests a reinforcement of the protection of the tourist in the event of insolvency of the organiser, intervenes on Article 17 of Directive 2025 / 2302 / EU and, while maintaining its structure, introduces detailed provisions. Thus, Member States should provide that, in the event of their insolvency, operators established on the territory of an European Union Country provide a guarantee for the reimbursement of payments made by tourists, with the clarification that it should also operate when the traveller accepts a voucher at a time prior to the state of insolvency. In the case of a voucher, the guarantee is limited to the amount of the payments made. Then, if transport is included in the package, the organiser must ensure repatriation and, if he is not established in a Member State, but offers a package in one, he must comply with the requirements of that Country. According to Article 17(2) of the Proposal, guarantees should cover the amount of payments made, the estimated cost of returns, refunds and vouchers. The coverage should take into account the periods in which the organisers hold the highest amounts and any changes in the number of contracts concluded. In general, travellers should enjoy protection in the event of insolvency, regardless of their place of residence, their place of departure, the place where the contract is concluded or the State where the organiser is established. The Proposal confirms Article 17(4), whereby, “when the performance of the package is affected by the organiser’s insolvency, security shall be available free of charge to ensure repatriations and, if necessary, the financing of accommodation prior to the repatriation”. At the same time, the Proposal recalls Article 17(5), which states that, “for travel services that have not been performed, refunds shall be provided without undue delay after the traveller’s request”, but specifies that refunds due to the organiser’s insolvency should be made within three months “after the traveller has submitted the documents needed to examine the request”. Finally, the Proposal wants a new subparagraph, according to which States may require similar guarantees from intermediaries if the volume of their business is such as to justify this measure. Then, by Article 19 of the Proposal, Article 17 applies to professionals facilitating the execution of related services. 12 CHIARA TINCANI
For the first time, with the Proposal the Commission suggested to the States to regulate the relations between undertakings in the case of refund claims. Thus, according to Article 22(2) of the Proposal, “member States shall ensure that, when a service provider cancels a service that is part of a package or fails to provide it, that service provider shall refund to the organiser any payments made by the organiser for the service within seven days. The seven day period shall start on the day following the cancellation of the service or the day when the service was due to be performed, whichever is the earlier date”. If the service is not performed, the service provider must return to the organiser the amount received within seven days from the time when the service was due to be performed or from the termination of the relationship. Since, according to Article 12(4) of Directive 2015 / 2302 / EU, the organiser has fourteen days from the termination of the relationship with the traveller to reimburse any payment, the seven - day time - limit set for the regulation of internal relations between companies should shelter the organiser from the risk of insolvency. J. M. Bech Serrat (2020), Chaper II. Information, obligations and content of the package travel contract. Article 5. Pre - contractual information, in Aa. Vv., Collective commentary about the new package travel Directive, edited by C. Torres, F. J. Melgosa Arcos, L. Jégouzo, V. Franceschelli, F. Morandi, F. Torcia, Estoril, Salamanca, Paris, Milan, Sassari, Rende, 216 - 226; C. Berenguer Albaladejo (2016), Luces y ombras de la nueva Directiva 2015 / 2302 / Ue del Parlamento europeo y del Consejo, de 25 noviembre de 2015, relativa a los viajes combinados y a los servicios de viaje vinculados, in Int’l Journ. sient. manag. tourism, 33 - 49; M. Brignardello (2023), I contratti del ‘turismo organizzato’ e di crociera, in Quad. riv. dir. nav., Bari; C. Camacho Pereira (2016), La informacion precontractual en el ambito de los viajes combinados tras la Directiva 2015 / 2302 / Ue del Parlamento europeo del Consejo, de 25 noviembre de 2015, relativa a los viajes combinados y a los servicios de viaje vinculados, in Rev. dr. UNED, 581 - 615; Z. Chen (2021), The tango between Art. 17 (3) Brussels Ibis and Article 6 (4) (b) Rome I under the beat of package travel Directive, in Maastrich Journ. eu. Comp., 879 - 899; 13 A PROPOSAL FOR A DIRECTIVE FOR MORE EFFECTIVE PROTECTION OF TOURISTS
J. De Almeida Vidal (2017), The responsibility of tour operators and travel agencies in the new package travel Directive: innovation or continuity?, in Aa. Vv., Collective commentary about the new package travel Directive, edited by C. Torres, V. Franceschelli, F. Morandi, Estoril, Lisbon, 365 - 387; E. Faletti (2008), I contratti di viaggio, Padua; I. Gonzàlez Cabrera (2020), The regulation of the dynamic package in the Directive (Eu) 2015 / 2302: a missed opportunity for the European legislator? in Aa. Vv., Collective commentary about the new package travel Directive, edited by C. Torres, F. J. Melgosa Arcos, L. Jégouzo, V. Franceschelli, F. Morandi, F. Torcia, Estoril, Salamanca, Paris, Milan, Sassari, Rende, 135 - 152; S. Mason - M- Gatenby (2016), The new package travel Directive: the definition of packaging and assisted travel arrangements, in Travel law quart., 4 - 12; M. Mc Donald (2020), Linked travel arrangements and their protection under the new package travel Directive, inAa. Vv., Collective commentary about the new package travel Directive, edited by C. Torres, F. J. Melgosa Arcos, L. Jégouzo, V. Franceschelli, F. Morandi, F. Torcia, Estoril, Salamanca, Paris, Milan, Sassari, Rende, 153 - 182; F. J. Melgosa Arcos (2020), Chaper I. Subject matter, scope, definitions and level of harmonisation. Article 1. Subject matter, in Aa. Vv., Collective commentary about the new package travel Directive, edited by C. Torres, F. J. Melgosa Arcos, L. Jégouzo, V. Franceschelli, F. Morandi, F. Torcia, Estoril, Salamanca, Paris, Milan, Sassari, Rende, 51 - 87; A. Pepe (2017), ‘Exceptional circumstances’ and exemption from tour operator liability in the new Travel Directive, in Contr. impr. Eu., 254 - 272 M. J. Reyes Lopez (2017), Novedades ledislativas recogidas en la Directiva 2015 / 2302 / Ue, de 25 noviembre, de viajes combinados y servicios de viajes vinculados, in Actualidad jiurìdica Iberoamericana, 341 - 351; A. P. Ribeiro Café (2017), Package travel Directive: contractual paretie and level of harminisation, in Aa. Vv., Collective commentary about the new package travel Directive, edited by C. Torres, V. Franceschelli, F. Morandi, Estoril, Lisbon, 345 - 363; B. N. Romano - C. Criscione (2019), Tourism law. The evolution from consumer to traveller, Turin; J. A. Torres Lana (2017), Chapeter I. Subject mtter, scope, definition, level of harmonisation . Article 1. Subject matter, in Aa. Vv., Collective commentary about the new package travel Directive, edited by C. Torres, F. J. Melgosa 14 CHIARA TINCANI
Arcos, L. Jégouzo, V. Franceschelli, F. Morandi, F. Torcia, Estoril, Salamanca, Paris, Milan, Sassari, Rende, 88 - 90; M. Wukoshits (2017), ‘Extraordinary’ legislative shortcomings in the new PTD, in Aa. Vv., Collective commentary about the new package travel Directive, edited by C. Torres, F. J. Melgosa Arcos, L. Jégouzo, V. Franceschelli, F. Morandi, F. Torcia, Estoril, Salamanca, Paris, Milan, Sassari, Rende, 131 - 142; P. Venditti (2018), Package tours after the reform. Organic commentary on Legislative Decree No 62 of 21 May 2018 amending the Tourism Code. 15 A PROPOSAL FOR A DIRECTIVE FOR MORE EFFECTIVE PROTECTION OF TOURISTS
Termination of the package travel contract due to unavoidable and extraordinary circumstances Angelo Venchiarutti1 I. Foreword. – II. The right of travellers to terminate the package travel contract. – III. Ex-post evaluations of the PTDirective. – IV. The proposal for amending the PTD. – V. CJEU Case Law. – VI. The Interpretation of the Court of plateau de Kirchberg. – VII. The traveller’s withdrawal according to Italian case law. – VIII. As a conclusion The paper deals with the traveller right’s to terminate the package travel contract before the start of the package in the event of ‘unavoidable and extraordinary circumstances’. The first part of this paper provides a description of the actual regulation on the «Termination of the package travel contract and the right of withdrawal before the start of the package» (Article 12(2) PTD). Then, the paper analyses the proposal for amending the PTD on this topic. The final part of the paper contains some reflection considering the decisions of the Court of Justice of the European Union on the subject, the case law of some national court and the opinion of the scholars. Keywords: package travel, unavoidable and extraordinary circumstances’, Termination of the package travel contract; proposal for amending the Directive on package travel. I. FOREWORD The Article 12(2) of the Directive (EU) 2015/2302 on package travel and linked travel arrangements (‘the Package Travel Directive’, ‘the Directive’ or ‘the PTD’) contemplates for the traveller a specific right to terminate the package travel contract. DOI 10.60559/ijtthl2025-002 1 University of Trieste.
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