IFTTA CONFERENCE 2007 Portugal Moral damages deriving from a ruined holiday. The case of Italy BY Alceste Santuari (Ph.D. Law–Cantab) Prof. of Tourism

IFTTA CONFERENCE 2007Portugal

Moral damages deriving from a ruined holiday. The case of Italy

BYAlceste Santuari (Ph.D. Law–Cantab)

Prof. of Tourism LawUniversity of Trento (Italy)

andGianluca Rossoni

Lawyer in Padova (Italy)

IFTTA Conference - Portugal 2007

SOURCES

IN ITALY THE DIRECTIVE 90\314 CEE ON “TRAVEL PACKAGE” HAS BEEN IMPLEMENTED BY LAW No. 111\1995 AND IS NOW INCLUDED IN LAW No. 206/2005 (CONSUMERS’ CODE).

THE D.LGS. N. 206/2005 IS A STATUTORY ACT: THE CONSUMERS’ CODE, WHICH INCLUDES PROVISIONS REGARDING THE PROTECTION OF CONSUMERS’ RIGHTS AND THE PROVISIONS ON TRAVEL PACKAGES (CONSUMERS’ CODE INCLUDES THE PROVISIONS OF THE D.LGS 111\95, NOW REPEALED)

THE CONSUMERS’ CODE DOES NOT INCLUDE THE REG. CE. No. 261\2004 ON FLIGHT CANCELLATION, OVERBOOKING OR PROLONGED DELAY

ITALY RATIFIED THE BRUSSELS CONVENTION OF 23 APRIL OF 1970 ON TRAVEL CONTRACTS (CCV) BY LAW No. 1084/1977. (ALSO CHINA, BELGIUM, ARGENTINA AND OTHERS FEW STATES RATIFIED THE CCV)


CCV VALUE

THE CCV HAS NOT BEEN INCLUDED IN CONSUMERS’ CODE

CCV IS PART OF ITALIAN LEGAL SYSTEM AND COULD NOT BE APPLY AGAINST THE CONSUMERS’ CODE

THE CCV PROVISIONS HAVE TO BE INTERPRETED UNDER THE CONSUMERS’ CODE RULES AND NOT THE REVERSE, IN THE LIGHT OF WHAT EU LAW INTENDS TO SAY AND TO ACHIEVE


CCV VALUE

CCV COULD BE APPLYED IN CASE OF:

1. NO ALL INCLUSIVE PACKAGE TRAVELS

2. TRAVELS ABROAD ONLY (Declaration of Italian Foreign Affairs Office issued in G.U. 17 september 1979, n. 255).

3. INCLUDING TRANSPORT AS COMPULSORY ELEMENT


DIR. 90\314 – ACT 111\95

ORGANIZERS AND SELLERS: DIFFERENT LIABILITY

IN CASE OF BREACH OR DEFAULT BOTH ARE HELD LIABLE, THOUGH “ACCORDING TO THEIR LIABILITY, RESPECTIVELY”

CHOICE TO KEEP THE TWO CHARACTERS SEPARATE

THE CONTRARY WOULD HAVE CAUSED A HARD LIABILITY REGIME FOR TRAVEL AGENTS (GENERALLY SMALL FIRM)

ABSOLUTE MAJORITY OF ORGANIZER LIABILITY IN CASE-LAW


RUINED HOLIDAY DAMAGE

DAMAGES CANNOT BE IDENTIFIED ONLY WITH THE PART OF THE PACKAGE THAT HAS NOT BEEN DULY PERFOMED

THEY ALSO HAVE TO DO WITH THE FACT THAT TRAVELLERS HAVE NOT BEEN ABLE TO USE THE STAY AS A CHANCE TO REST AND ENJOY THEMSELVES, AS ORIGINALLY PLANNED, ESPECIALLY IN CASE OF RARE OPPORTUNITIES UNLIKELY TO BE REPEATED

THE RUINED HOLIDAY DAMAGE IS TO REFER TO:

1. MORAL ISSUES

2. BIOLOGICAL ISSUES

3. PERSONAL ISSUES


RUINED HOLIDAY DAMAGE (2)

FOR YEARS THE ITALIAN COURTS GRANTED REDRESS ONLY FOR DAMAGES ORIGINATING FROM TORTS PROVIDED FOR BY THE LAW, I.E. UNLAWFUL ACTS

FOLLOWING THE LEITNER CASE (ECJ 2002), THE ITALIAN COURTS HAVE STATED THAT RUINED HOLIDAY DAMMAGE IS GENERALLY ACCEPTED

AT PRESENT THERE ARE NOT COMMON STANDARDS OR PREFIXED SCHEDULES OF ECONOMIC RESTORATION FOR RUINED HOLIDAY DAMAGES

AFTER A PERIOD OF EASYGOING INDEMNITY FOR THE BENEFIT OF CONSUMERS, ITALIAN COURTS, DUE TO THE INCREASING OF CONSUMERS’ LEGAL ACTIONS, STATED A CLAMPIMG DOWN OF THE MONEY AMOUNT GRANTED TO TOURIST


CASE HISTORIES

CASE 1

MISLEADING INFORMATION ABOUT VISA TO NO UE CITIZIEN

MOROCCO’S CITIZEN BOUGHT FROM AN ITALIAN T.O. AN ALL INCLUSIVE TRAVEL PACKAGE FOR AN HOLIDAY IN EGYPT

T.O. WROTE IN P.N.R. THAT IN ORDER TO GET INTO EGYPT IT WAS ENOUGH TO BE HOLDER OF A PASSPORT WITH THREE MONTHS REMANING VALIDITY AT THE DATE OF THE ENTRANCE

CHECK-IN STAFF IN MILAN AIRPORT DID NOT ALLOW TOURIST TO BOARD BECAUSE EGYPT REQUIRED VISA FOR MOROCCAN PEOPLE


CASE HISTORIES

CASE 1

TOURIST BROUGHT A LAW SUIT AGAINST T.O. IN ORDER TO OBTAIN THE REFUND OF THE COST OF THE TRAVEL PACKAGE AND A REDRESS FOR RUINED HOLIDAY DAMAGES

T.O. AFFIRMED THAT IT HAD NO LIABILITY BECAUSE SECTION 87 OF ITALIAN CONSUMERS’ CODE OBLIGES ORGANIZER TO GIVE INFORMATION ABOUT PASSPORT AND VISA ONLY TO EU CITIZENS

ITALIAN COURT STATED T.O. LIABILITY BECAUSE SECTION 87.4 OF ITALIAN CONSUMERS’ CODE, AS CLOSING CLAUSE, FORBIDS TO GIVE, NO MATTER TO WHOM, MISLEADING INFORMATION ABOUT THE FORM OF SERVICES, THE PRICE AND OTHER ELEMENTS OF CONTRACT


CASE HISTORIES

CASE 1

ITALIAN COURT ALSO STATED THE AIM OF DIR. 90\314 CEE IS TO ATTRACT NO EU CITIZEN TO BUY TRAVEL PACKAGES FROM EU T.O. BECAUSE EU ORGANIZERS GUARANTEE A HIGHER STANDARD OF TOURIST PROTECTION COMPARED TO NO UE ORGANIZERS

ITALIAN COURT CONDEMNED T.O. TO REFUND CONSUMER OF THE WHOLE PRICE OF TRAVEL PACKAGE (1.827,00 €) + AN AMOUNT AS REDRESS FOR RUINED HOLIDAY DAMAGE (1.500,00 €)


CASE HISTORIES

CASE 2

TOURIST KNEW HE HAD A CANCER THREE DAYS BEFORE THE DATE OF DEPARTURE

DUE TO CONSUMERS’ WITHDRAWAL FROM THE TRAVEL PACKAGE, T.O. WITHHELD 50% OF THE PRICE AS PENALTY BECAUSE THE TOURIST’ COMMUNICATION ARRIVED WITHIN FOUR DAYS FROM THE DATE OF DEPARTURE

TOURIST BROUGHT A LAW SUIT AGAINST T.O. IN ORDER TO OBTAIN THE REFUND OF THE OTHER 50% OF TRAVEL PACKAGE’S COST BECAUSE HE AFFIRMED THE WITHDRAWAL WAS DUE FOR IMPOSSIBILITY NOT CHARGEABLE TO HIM (ART. 1463 ITALIAN CIVIL CODE)


CASE HISTORIES

CASE 2

CONSUMER REPORTED HE KNEW THE DISEASE SUDDENLY AND HE PROVED HIS ASSERTIONS BY MEDICAL DOCUMENTS

T.O. AFFIRMED THE ORGANIZER COULD NOT TAKE ON FOR THIS UNILATERAL CONSUMER’S WITHDRAWAL, BECAUSE T.O. WAS HOWEVER ABLE TO OFFER HIS SERVICE AND THE PENALTY WAS APPROVED BY CONSUMER IN THE GENERAL CONDITIONS OF TRAVEL CONTRACT (ADOPTED BY CONSUMERS ASSOCIATION - NO MATTER OF ABUSIVE CLAUSES)

T.O. INSISTED ON THE FACT THAT FOR THESE SITUATIONS CONSUMER COULD HAVE BEEN SIGNED AN APPOSITE INSURANCE IN CASE HE DECIDES TO AVOID HIS BOOKING OF TRAVEL PACKAGE BEFORE THE DATE OF DEPARTURE


CASE HISTORIES

CASE 2

ITALIAN COURT STATED THAT THIS SITUATION IS A CASE OF UNEXPECTED FACT NOT CHARGEABLE TO ANY PARTS AND CONSIDERED THE REMAINING 50% OF THE COST AS A DEPOSIT

ITALIAN COURT STATED THAT IN THIS CASE THE ORDINARY EFFECT OF THE LOSS OF DEPOSIT BY THE CONSUMER (ART. 1385 ITALIAN CIVIL CODE) COULD NOT BEEN REALIZED BECAUSE THE WITHDRAWAL OF TOURIST WAS JUSTIFIED FOR AN UNEXPECTED FACT NOT CHARGEABLE TO ANY PARTS (SECTION 86.1.D OF ITALIAN CONSUMERS’ CODE)


CASE HISTORIES

CASE 2

ITALIAN COURT STATED T.O. HAD ONLY THE RIGHT TO DEDUCT THE CHARGES PAID TO HIS PROVIDERS BEFORE THE DATE OF DEPARTURE, BUT T.O. IN THE JUDGEMENT DID NOT PROVED HIS PRE-PAYMENTS BY DOCUMENTS

FINALLY ITALIAN COURT CONDEMNED T.O. TO REFUND TOURIST OF THE REMAING 50% OF THE COST OF TRAVEL PACKAGE (2.100,00 €)


MOLTE GRAZIE PER LA VOSTRA CORTESE ATTENZIONE !

THE END

Documents

IFTTA CONFERENCE 2007 Portugal Moral damages deriving from a ruined holiday. The case of Italy BY Alceste Santuari (Ph.D. Law–Cantab) Prof. of Tourism