The activities of travel agents and tour operators are governed by the EU Package Travel Directive (90/314/EEC). The directive was implemented in Belgium by the Law of February 16 1994, which governs packages and travel contracts.
Articles 12 and 24 of the law provides that a traveller has the right to transfer his or her travel arrangements to a third person on three conditions:
- The assignee must fulfil all conditions relating to the contract concluded with the assignor;(1)
- The assignor must inform the travel agency or tour operator "long enough before" the departure; and
- The assignor and the assignee remain jointly liable for payment for the travel and for the transfer costs.
Most air carriers include in their general conditions of carriage a prohibition against ticket transfer. Article 3(1)(3) of Brussels Airlines' conditions of carriage states: "A ticket is not transferable. Only you can use it for the flight."
The difference between these two regimes gave rise to a judgment of the Constitutional Court.
The consumer association Test-Achats brought an action before the Namur Commercial Court, claiming that several provisions of Brussels Airlines' general conditions of carriage were incompatible with Belgium's fair trading legislation. Among other things, Test-Achats claimed that a consumer should enjoy a right of transfer under Article 12 of the law, regardless of whether he or she has concluded a contract with an intermediary (ie, a travel agent or tour operator) or directly with an air carrier. On this basis, the provision in the airline's general conditions of carriage would be invalid, as it provides that each ticket is non-transferable.
The court held that Article 12 applies only to travel agencies and tour operators; therefore, it does not apply to air carriers, which act on their own behalf.
Nevertheless, the court referred the question of the law's compatibility with Articles 10 and 11 of the Constitution to the Constitutional Court.
The Constitutional Court had to determine whether the position of travel agents and tour operators, as compared to that of air carriers, was discriminatory, since a consumer who concludes a contract with a travel agent or tour operator enjoys a right of transfer, whereas a consumer who enters into a contract of carriage directly with the air carrier does not.
The court noted that there was differential treatment between air carriers and travel intermediaries. However, it considered the difference to be reasonably justified. The court based its judgment on the fact that contracts variously concluded with air carriers and with travel intermediaries do not have the same object.
When a consumer books air travel through a travel agency, he or she concludes an agreement with an intermediary. The object of the contract is not the ticket, but the intermediary's obligation to book the ticket or to organise travel on the consumer's behalf. However, when the consumer books his or her ticket directly with the air carrier, the object of the contract is the transportation, evidenced by the issuing of the ticket. In the court's view, a consumer who opts for this direct means of booking can be considered to have accepted the general conditions of carriage which, among other things, may include a prohibition against transferring the ticket.
In this respect, Article 3(1)(3) of the airline's general terms and conditions has been validated by the court.
For further information on this topic please contact Pierre Frühling at Field Fisher Waterhouse LLP by telephone (+32 2 732 14 05), fax (+32 2 732 14 15) or email ([email protected]).
(1) For example, a traveller under 18 who benefits from a reduced tariff by virtue of his or her age cannot transfer the contract to another party who does not meet this criterion.