La Corte di Cassazione, nella sentenza in esame, rigettando il ricorso presentato da un tour operetor, ha confermato la sentenza di accoglimento emessa in primo grado dal Giudice di Pace di Roma e ribadita in appello dal Tribunale, in materia di viaggi cd. “tutto compreso” e risarcimento del “danno da vacanza rovinata”. La Suprema Corte ha, tra l’altro, affrontato la problematica relativa all'esonero del professionista dalla responsabilità, nel caso in cui la mancata o inesatta esecuzione del contratto è imputabile al consumatore ovvero dipende da fatto imprevedibile o inevitabile del terzo o da forza maggiore or accident. The Saz: Cour de cassation. Civil - Judgement No. 10651/2008 Conduct of case FA and CG brought proceedings against the spa's "The Travels of V." claiming to have bought a holiday "all inclusive" in the island of Djerba, in Tunisia, a tourist village "V." . The holiday had been compromised by the impracticability of the sea conditions during their stay because of illegal dumping carried out by a tanker. The plaintiffs complained of the failure by the tour operators to take appropriate measures to provide alternative services during their stay and asked to be compensated for their losses because they derived such behavior of the defendant company. Justices of the Peace of Rome, in sentence no 647/00, granted a request by liquidating in favor of the actors, the damage in the sum total for both L. 1,400,000, equal to half the cost of the holiday. Appealed to the company "The Travels of V" and the Court of Rome, in sentence no 548 9 / 03, confirmed the decision of Justice of the Peace. The Court, after noting that the contract made between the parties had been subject to a stay in the seaside resort of Djerba V. according to the formula of the package "all included "(cd package tour) and that sea conditions were compromised during the stay so serious by the illegal dumping of an oil tanker off the coast of Tunisia, said that the impracticability of the sea conditions had made it impossible for the organizer the trip to provide an important part of the service. the appellate court took the view that the residence had lost its usefulness because of the impracticability of the sea conditions and, accordingly, applied the Legislative Decree no. 111, 1995, Art. 12, paragraph 4, which transposed into Italian law the EU Directive No 314/1990/CEE. According to this legal provision, where, after departure, some of the services under the contract of the package "can not be carried out, the organizer shall make suitable alternative arrangements for the continuation of the scheduled trips or to reimburse the consumer for the difference between the services originally planned and carried out, except damages. In this case the Court found that the tour operator had not fulfilled their obligation to take steps to offer customers alternative solutions had offered a partial refund of the price. Against the decision of the Supreme Court of Rome used for two reasons, the spa I Viaggi del V. . Defend themselves by filing a counterclaim and memory art. 378 cpc. FA and CG. Reasons for decision First to be rejected the plea of \u200b\u200binadmissibility of the appeal, under Articles. 365 and 83 Code of Civil Procedure, proposed by controricorrenti with reference to authentic power of attorney made by a lawyer does not Cassation. On this point, the legitimacy of law (Supreme Court Civil Section 2 ^ n. 23994 of 27 December 2004, Rv. 578 501) has clarified that the non-certification by the defender of the autograph signing by the appellant, made on the special power of attorney or at the bottom edge of the appeal, is mere irregularity which does not involve the nullity of attorney "ad litem" is invalid because it is not imposed by law, because that formality is not affected prerequisites for the intended purpose of the act, identified in the training of procedural relationship through the establishment of the attorney appointed to trial, unless the other party does not contest, with specific and valid reasons and evidence, the authenticity of the signature is not authenticated. In the first complaint the company "Travels of V." laments the lack of enforcement of the Legislative Decree no. 111 of 1995, Art. 17, which provides for exemption from the professional liability prescribed in Articles. 15 and 16 of the decree, if the failure or improper performance of the contract is attributable to the consumer depends on unforeseeable or unavoidable or three, or by force majeure or unforeseeable circumstances. However in this case the applicant denies that there has been partial implementation of the contract because the lords C. and F. have benefited, however, in addition to travel, housing, meals and services. The second ground of appeal complains about the failure, inadequate and contradictory reasoning and notes in particular that the contested decision contradicts himself when acknowledging the exceptional and unforeseeable event does not draw the logical consequences. On the other hand, the applicant states that have not been evaluated the circumstances under which Mr and Mrs C. and F. did not submit any complaints during their stay and were the only customers for the period in question, brought an action for damages. The two grounds of appeal may be considered together because of their obvious legal and logical connection. As has been pointed out, both in doctrine and in jurisprudence, the travel package (also known as travel packages or package) is a new type of contract where the "tourist purpose" (or, more general expression, the " purpose of pleasure ") is not insignificant, but one reason is embodied in the interest that the same is functionally designed to meet, characterizing and determining the specific case, therefore, the essentiality of all activities and services instrumental to the achievement of the primary end the enjoyment of the holiday as it is proposed by the organizer of the trip (tour cd operator) and accepted by the user (see in particular section 3rd Civil Court of Cassation, No. 16315 of February 24, 2001, Rv. 598 453). There has been talk in the literature of marketing of the holiday itself, expressing in this way, the major reason that takes the intangible asset of the holiday defined by all of the elements that allow the user to enjoy a period of rest and recreation-oriented on a precise formula proposed by the organizer of the trip. In this reconstruction of the contractual claim was received in consideration of the rationale of the guidelines from the Community legislation (Directive CEE/90/314) that is strongly guided by the purpose of protecting the consumer's right to receive actual holiday tour operator offering on the market and enable the option to terminate the contract if the use of services that characterize the offer becomes unavailable either before or after departure lai. On the other hand the rules transposing the EU directive, which is currently implemented in the Consumer Code (Legislative Decree no. September 6, 2005, n. 206, Art. 82 to 100), provides entrepreneurs the opportunity to pursue the preservation of the contract by and alternative offers consumers the opportunity to be free or reduce the damage caused by failure or improper performance of the service which is the overall package. Of particular importance in this respect, as provisions of art. 91 of the Consumer Code for the situation where, after departure, an essential part of the services under the contract can not be obtained. In this case art. 91, paragraph 4, requires that the organizer provide for adequate alternative arrangements for the continuation of the trip, with no extra charges of any kind to the consumer, or reimburse it for the difference between the services originally planned and carried out, to pay compensation for damage. The next paragraph then provides that, if there is no alternative solution or the consumer did not accept for a valid reason, the organizer provides an equivalent transport to return to the place of departure or at another agreed place and return the difference between the cost of benefits provided and the performance up to the time of anticipated return. This case raises a number of interpretative problems relating specifically to those provisions of Art. 91. It should first be clarified with reference to that provision to extend the concept of services that are an essential part of the benefit paid tour of the travel organizer. Secondly we must ask whether the conduct, which the employer is required under the rule under discussion, assume that it is impossible to provide, after departure, the services constitute an essential part resulted solely from the provision made due to the farmer himself. Finally, it must consider whether the employer is exempt from complying with the requirements of the standard test if the inability to provide services resulting from accident, force majeure or due to the fact that one third have met the requirements of unpredictability and inevitability. On the first point should be noted that the Court correctly placed the question of interpretation that characterizes the present case noted that although the use of the sea and the beach can not be considered strictly a tourist service, however, it is clear that it is the basis of utility of the package. From this logic consideration comes that is overly restrictive reading of the expression is directly dependent on services such as corporate structure and the organizer of the trip. In any case it is overly restrictive, if one takes into account the ratio described the inspiration of the EU Directive, a scope of Article. 12 of legislative decree, and now art. 91 of the Consumer Code, limited only to cases where the performance of the contract is prevented or greatly affected by factors that fall within the power of tour operators. If, for example, we consider the hypothesis of an organized trip is evident considering that the loss of a transmission line that would result allow to reach a certain location will, objectively, the loss of an essential service for the planned development of the travel which the organizers will still have to make up, for example, with the use of own transport or private. It must therefore be regarded as logical and consistent with the spirit of the EU Directive an interpretation that makes the rule applicable to fail even when the services are not traceable to the activity of the tour operator but rather the conditions that make the holiday extrinsic relevant and useful services offered by tour operators. The yardstick for the application of the rule must therefore be to service user who is entitled to receive through them to those usefulness of the typical stay, vacation or travel with the tour operator has put on the market. In these utilities include, for example, the scope of access to environmental attractions, historical or artistic form the basis of choice for the tourist to buy that specific package so that the lack of access to them is the disappearance of an essential prerequisite of Service the service that the organization and the accommodation of the organizer of the trip make available to the consumer. In this case seem to correspond to this interpretation reconnect with the availability of a sea of \u200b\u200bspecial beauty and appeal as one of the island of Djerba in the nature of the assumption essential service would constitute an essential part of the tourist service because it is closely related to the location and the commercial appeal of the village where you were scheduled to stay. In this respect the motivation of the trial court is therefore appropriate and consistent with a reading of the provision taking into account the causal relevance that the holiday travel takes on the CD package. It is not possible to attribute any defect, failure or inconsistency, the reasons that did not take account of missing or immediate claims of today's controricorrenti, or the failure to bring court actions by the other residents. The provisions of art. 91 of the Consumer Code does not allow some to herald a kind of acquiescence to the failure of the consumer organization's activities do not warrant it and make it punishable. The answer to the first question that you have had those seats makes it easier for the next two questions. In fact, these responses are consistent to the first if you have a point of orientation in the interpretation of the guidelines according to its primary inspiration. To protect the enjoyment of an asset (the holiday) that is of particular value in the existential life of people who spend most of their time at work. So the legislature has intervened to ensure the correspondence between expectations of leisure, rest, avoidance, learning that a holiday can provide and offer commercial from the tour operator. Obviously it can not ensure, for example, aesthetic or spiritual satisfaction that the consumer was envisioned to derive from the holiday but will be required to provide the services at least theoretically, may give the pleasure of the trip or stay, which the consumer has perceived as specific and determining the value of the commercial organization and, as we said earlier, be obliged to work when the condition for usability services has failed. In this perspective there is no reason or no reason in particular text, for believing that the obligations to provide adequate alternatives for the continuation del viaggio programmato (non comportanti oneri di qualsiasi tipo a carico del consumatore), oppure di rimborsare quest'ultimo nei limiti della differenza tra le prestazioni originariamente previste e quelle effettuate, non sussistano nel caso in cui i servizi previsti non siano fruibili per fatto non imputabile al tour operator. Quest'ultimo assume infatti un obbligazione di risultato (cfr.Cassazione Sez. 3^, Sentenza n. 21343 del 09/11/2004, Rv. 578572) con la stipulazione del contratto di viaggio o soggiorno tutto compreso e di tale risultato è tenuto a rispondere. Il legislatore comunitario e nazionale hanno ovviamente limitato questa responsabilità del tour operator per renderla compatibile con il carattere economico della sua attività. In questa perspective has been active option, provided art. 91 of the Consumer Code, paragraph 4, including the provision of alternative services or the reimbursement of the difference between the services originally envisaged and the service provided. In this perspective should also be read the waiver of liability provisions of art. 96 of the Code of consumption (which reproduces the text of the Legislative Decree no. 111, 1995, Art. 17). Such limitation of liability were not related to the provision of alternative services or the liability of tour operators (provided by art. 91 for the case of modifications in the contract) would claim as to the plaintiff, but instead refers to liability for damages arising from the o dalla inesatta esecuzione delle prestazioni che formano oggetto del pacchetto turistico (responsabilità disciplinata dagli artt. 94 - 95 del codice del consumo). Ne risulta quindi che la causa dell'inadempimento, o inesatto adempimento, delle prestazioni previste nel pacchetto turistico resta indifferente, se si ha riguardo agli obblighi e diritti derivanti dalla disciplina delle modifiche delle condizioni contrattuali di cui all'art. 91 del codice del consumo. Al contrario il tour operator non sarà responsabile per i danni ascrivibili all'inadempimento o inesatto adempimento qualora dimostri la sussistenza delle condizioni per l'esonero di responsabilità previsto dall'art. 96. Una estensione della disciplina dell'esonero agli obblighi derivanti dall'art. 91, but must be excluded as well as textual reasons for the apparent contrast that occur with the spirit of the guidelines and with the same fundamental principles in this area art. 38 of the Charter of Fundamental Rights of the European Union's institutional order that provides for such a high level of consumer protection. This high level of protection is precisely in this case, the irrelevance because of the disappearance of the conditions for usability of the services provided in the contract of all-inclusive stay and what to prevent events unrelated to the responsibilities of consumers and tour operators behave the exemption from liability for the performance of the latter obligations under Article. 91 of the Consumer Code. Exemption that would result in a risk-sharing for external events to specific performance of the parties to be charged to the consumer. With the fulfillment of these obligations the legislature has provided for a number of mechanisms that may qualify as instruments of sinallagmaticità balance of the contract and the protection of the effectiveness of a benefit having significant intangible value to the consumer. The purpose and operation of such instruments is itself so inherently inconsistent with the assessment of the responsibility of the tour operator for the causation of those external factors that will be unusable or reduced usability its services. The appeal is therefore dismissed with costs against the appellant to pay the costs of the proceedings of cassation.
PQM
The Court: Reject the appeal and order the applicant to pay the costs of the proceedings of cassation, paid by a total of € 1,100.00, of which € 100.00 for expenses, overheads and accessories of the law. 
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