HASAt the start of the Covid-19 pandemic, some French people were on vacation abroad. Their travel agency, which repatriated them urgently, before the borders closed, should it reimburse them for the share of the stay that had not been used? A first decision, eagerly awaited, has just been rendered.
It concerns Mr. and Mr.me X, left for a cruise in Egypt, from March 14 to 21, 2020 (for the sum of 1,861 euros), and repatriated by the tour operator FRAM on March 18. On the way back, M.me X claims reimbursement of the land services not performed, i.e. 213 euros. FRAM gives her a credit note valid for one year, which she refuses.
Mme X mobilizes the legal protection of its insurance to assign the tour operator. His lawyer claims… more than 600 euros, corresponding according to her to the“all unexecuted services”and including the return flight – although it did take place, at a price probably much higher than that which FRAM had been able to negotiate for March 21.
1,500 euros in damages
The lawyer invokes an article of the Tourism Code according to which the traveler who has taken out a package travel contract “is entitled to an appropriate price reduction, for any period of non-compliance of the services provided” (L 211-17-I). The term ” discount “, which is understood in relation to the price paid, designates the reimbursement of services not performed.
Without doubt, for lack of contradiction – FRAM not being represented at the trial –, the local court of Aubagne (Bouches-du-Rhône) gives reason to Mme X. He awarded him, in addition… 1,500 euros in damages. The tour operator FRAM is appealing. His lawyer assures that he has fulfilled his “Obligation to remedy the non-compliance of the services provided”granting his client a “price reduction of 213 euros”in the form of a credit note.
The Aix-en-Provence Court of Appeal, which rules on May 5 2022, recalls that under the Tourism Code (article L211-16-I) the professional is certainly responsible “by right” of the poor performance of the services provided for in the contract, but that it “can exonerate themselves from liability”, by providing proof that the damage is attributable “in exceptional circumstances”. And that, in this case“the traveler is not entitled to any compensation” (article L 211-17-III).
” Commercial gesture “
However, notes the court, the repatriation of the X is “linked to the global Covid-19 pandemic”. This appearance is analyzed as “an exceptional circumstance” and “a case of force majeure”who “allows FRAM to exonerate itself from liability”. Consequently, she judges, FRAM was not required to compensate its client, or even to give her a credit note, which it qualifies as ” commercial gesture “. Mme X not having appealed to the Court of Cassation, this judgment will set a precedent.
If the Aix court had ruled that FRAM had to reimburse the services not performed, it would probably not have allowed it to do so in the form of a credit note, not convertible into money. The Brussels Commission has indeed reprimanded the airlines which had taken the liberty of doing so for the flights which they had cancelled. She insisted that travelers should be reimbursed in cold hard cash, not in credit notes – unless they consented.
In July 2020, it launched an infringement procedure against France, because it had temporarily authorized travel agencies to defer their reimbursement for twenty-one months:order of March 25, 2020which concerned cancellations that occurred between 1er March 2020 and September 15, 2020 inclusive, derogated from the principle of ” complete refund “provided for by the guideline on package tours.