EU Regulation 2111/2005 established a list of air carriers that are subject to an operating ban within the European Community, and imposed an obligation to inform passengers of the identity of the operating air carrier. This provision has already been integrated into the French Civil Aviation Code.
On 24 April 2013, the French Parliament passed a new law (2013-343) which takes the obligation to inform passengers one step further: any party (whether an individual or a corporation) offering contracts of carriage which include, for any leg of the journey, carriage by an ‘actual carrier’ (as defined by Article 39 of the 1999 Montreal Convention), which is subject to an operating ban within the European Union, must:
- Inform the passenger or ticket purchaser of this in clear and unambiguous terms, in writing.
- Invite the passenger or ticket purchaser to seek alternative travel options.
- Do so before conclusion of the contract of carriage (or where appropriate, the travel package).
Failure to comply with this obligation, and/or the sale of a package or contract of carriage involving a flight with a blacklisted carrier, will expose the seller to a fine of €7,500 per ticket sold (increased to €15,000 for a repeat offence).
This fine is distinct from the criminal proceedings which may also be pursued against the air carriage contractor (i.e., the carrier, tour operator or other seller) for deliberately endangering human life or criminal negligence (under Article 121-3 of the Criminal Code).
The law was first presented in draft form to the National Assembly in December 2009. It is slightly odd that even though the draft law was unanimously adopted before the National Assembly and the Senate, it still took more than three years to be passed into law.
The new law does not go so far as to prohibit the sale of tickets involving a carrier which is subject to an operating ban within the European Union; although this was initially envisaged, such a provision was considered to be ineffective or inappropriate, since in certain parts of the world alternative carriers are unavailable.
The law will enter into force on 24 April 2014 or on such earlier date as may be set down by decree.
A practical question arises as to who is affected by this new law. Clearly, any ticket seller or air carriage contractor (as defined by EU Regulation 2111/2005) operating within France will be affected. However, there is an issue of whether such sellers or contractors operating outside France can be affected by the law. The manner in which the authorities seek to apply the law will need to be monitored.
Nevertheless, it is clear that many tour operators and airlines offering contracts of carriage involving blacklisted air carriers within France will need to adapt their practices in order to ensure that potential passengers are warned of the situation and invited to seek alternative travel arrangements prior to the conclusion of the contract.