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03 April 2013
The Act of February 16 1994 – which covers the contracts of tour operators and travel agencies and implements the EU Package Holiday Directive (90/314/EC) – defines 'travel agent' in Article 1 as "any person acting as a seller within the meaning of the Act of 14 July 1991 on trade practices and on information and consumer protection, who takes the undertakings [of a travel agency contract]". 'Travel agency contract' is defined as:
"any contract whereby a person undertakes to provide to another, subject to payment of a fee, either a contract of travel organisation, or one or more individual services to accomplish a journey or any trip."
When selling flight-only tickets, the travel agent enters into two separate special agency agreements, under which it undertakes distinct obligations to both the customer and the air carrier. This is referred to as the 'double mandate system'.
Travel agencies' terms and conditions often stipulate that they act as 'intermediaries' or 'agents' when selling flight-only tickets (ie, tickets not bound to a package). This stipulation raises the question of whether travel agents act as agents for:
One legal consequence of this stipulation is the impact on the liability regime of travel agencies and air carriers towards customers in the event that, for instance, the travel agent fails to cancel or modify the flight ticket of a customer according to the terms and conditions of the air carrier. Under Belgian law, a principal – the air carrier – may, under certain restrictive and special circumstances, be held liable towards a third party in the event of damage caused by its agent.
The designation of a travel agency as 'intermediary' or 'agent' is consistent with Article 21 of the 1994 act, which provides that once flight tickets have been sold to customers, the contract of air carriage is deemed to have been directly entered into between the air carrier and the customer according to the representation process. This is also consistent with the International Air Transport Association Travel Agent's Handbook, which provides that travel agents are agents "representing the Air Carrier" in their relations with customers (Resolution 824, June 1 2012).
The double mandate system is based on the travel agent's dual relationship with both the customer and the air carrier – on the one hand, the travel agent receives instructions from the customer to book flight tickets; on the other, the travel agent receives instructions from the air carrier to sell flight tickets and collect the ticket price on behalf of the air carrier. These two agency contracts therefore have distinct scopes and, consequently, the customer wishing to hold a travel agent or air carrier liable must claim in respect of the appropriate party. Several claims regarding these issues are currently pending before Belgian courts.
Under Belgian law, it is generally accepted that the travel agent acts mainly as an agent of and on behalf of the customer. The scope of the agency contract entered into with the air carrier is thus more restricted.
Under the agency contract entered into with the customer, the travel agent undertakes to:
The travel agent must provide information about the contract of air carriage, especially the terms and conditions of the air carrier applicable to the booked flight. The travel agent must also provide advice as to the specific conditions of the contract of air carriage – most notably, the conditions for rescheduling and cancelling bookings and the applicable fees.
Both the travel agent and the air carrier must inform the customer of the flight schedule at least seven days before the scheduled departure.
Under the agency contract entered into with the air carrier, the travel agent undertakes to:
Furthermore, the air carrier must provide the travel agent with all relevant information concerning its terms and conditions and possible modifications.
When introducing a claim relating to a purchased flight-only ticket, the claimant must have regard to the exact nature of the breach or negligence on which the claim is based. Article 5(1) of EU Directive 90/314/EC provides that:
"Member States shall take the necessary steps to ensure that the organizer and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organizer and/or retailer or by other suppliers of services [eg, air carriers] without prejudice to the right of the organizer and/or retailer to pursue those other suppliers of services."
The 1994 act makes a clear distinction between the travel agent's liability for the services relating to the travel agency contract and the air carrier's liability for matters relating to the contract of air carriage. Consequently, the customer is entitled to sue the air carrier only if the breach or negligence stems strictly from the contract of air carriage. For instance, the customer cannot hold the air carrier liable for failing to reschedule the customer's booking where such rescheduling is an obligation of the travel agent under the agency contract entered into with the customer (the travel agent usually undertakes all operations relating to bookings in accordance with the air carrier's terms and conditions).
The travel agent may be held liable for the following breaches of the agency contract with the customer:
The customer has no right of action towards the air carrier for any obligations that stem from the agency contract entered into between the travel agent and the customer.
The air carrier may hold the travel agent liable for not submitting the customer's ticket payment that it collected on behalf of the carrier; if the ticket payment remains with the travel agency, the passenger will be discharged of all liability. Consequently, if the travel agent fails to submit the payment to the air carrier for any reason (eg, fraud or bankruptcy), the carrier will be able to claim such payment only against the travel agent and will remain obliged to perform the services in question.
The travel agent remains an intermediary between the customer and the air carrier at all times. As such, the agent is not a party to the contract of air carriage; the travel agent thus cannot rescind the contract of air carriage if the passenger fails to pay the ticket price. Only the air carrier is entitled to refuse to perform its obligations under the contract of carriage. Nonetheless, the passenger's default of payment of the ticket price constitutes a breach of its obligations under the agency contract into which it entered with the travel agent. Such a breach can give rise to the travel agent filing a claim to recover the payment on the grounds of the agency contract.
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Pierre D Frühling