The ” tour operator ” travel agent – A legal decoding
The role of travel agents has evolved considerably, particularly with e-commerce. We have gone from “tailor-made travel” or “à la carte travel”, driven by the customer himself, giving the travel agent an express mandate to combine the travel services he wishes to obtain, to the organization of “package travel” offered online by the travel agent to the customer, who has therefore lost all steering role.
Admittedly, the two concepts overlap on a strictly legal level, since an à la carte trip will in the vast majority of cases constitute a package tour.
However, while the applicable legal regime is the same, it is the very concept of travel organization that has evolved.
Naturally, “à la carte travel” remains an option for every customer. Today, however, it is a more elitist, less mass-market travel option, and therefore less commonly used.
The vast majority of existing travel formulas are now combined in advance and offered for sale to the customer, who can only buy them as a package.
The customer has thus lost his role as planner of his own trip, to the benefit of the travel agent himself.
Reminder of the legal concept of a tourist package
Article L.211-2-II of the French Tourism Code specifies that a tourist package is a combination of “at least two different types of travel services for the purposes of the same trip or vacation stay, exceeding twenty-four hours or including an overnight stay”, the travel services being mainly passenger transport or accommodation which does not have a residential purpose.
The tourist package is drawn up by a professional acting mainly as an tour operator, who draws up and sells the package directly, or a retailer who sells the package drawn up by an organizer.
Thus, in practice, the combined sale of non-residential accommodation and passenger transport leads to the legal qualification of a tourist package.
In addition to the above, the French Tourism Code specifies that a tourist package may also be constituted by the combination of a travel service (passenger transport, for example) with other “tourist services” if the latter represent “a significant part of the combination”, i.e. a value of at least 25% of the value of the combination according to article R. 211-1-1, or are advertised as an essential feature.
It is therefore clear that in the vast majority of cases, an à la carte trip will constitute a package tour simply because of the combination of travel services it suggests.
This is not the distinguishing criterion, but rather the legal qualification of the contract between the customer and the travel agent.
The concept of the organizer travel agent
Unlike custom-made travel, where the customer gives instructions to the travel agent in the manner of a principal, the organizer travel agent takes control by organizing the trip in advance and offering it to the customer, often online.
A travel agent who offers pre-packaged travel services and imposes a turnkey package on the customer is known as an organizer, and is often referred to as a tour operator.
Tour operators offer products that include various services (airlines, hoteliers, coach operators, restaurateurs, guides, etc.), but do not offer customized stays. In practice, he negotiates prices for travel services with suppliers to the tourism market and deals directly with travel agencies, selling them the packages thus created.
Legal status of the customer’s contract with the travel agent
The travel agent organizing package tours was legally qualified as an agent. However, this legal classification was inappropriate or even inaccurate, since the agent acts at the express request of his principal, on the basis of his instructions.
However, the tour operator anticipates its customers’ requests without receiving any instructions from them.
This is why the legal definition has evolved towards that of a “contrat d’entreprise” or “contrat de louage d’ouvrage”, in which the travel organizer assumes the role of “architect” of the trip. As a reminder, the definition derives from articles 1709 and 1710 of the French Civil Code, which, taken together, specify that it is a contract by which a contractor undertakes, in return for remuneration, to carry out a work for another, the customer (the client), independently and without power of representation.
However, this legal qualification has also proved to be inappropriate, since the contractor acts at the request of his customer and does not pre-empt his instructions. The tour operator, on the other hand, designs the trip or holiday that he will offer his customer, without taking any instructions beforehand.
In the end, the legal classification now adopted is that of a “contract for the sale of a tourist package” (or sale of a travel package), which entails the application of an exclusive legal regime laid down by the French Tourism Code for all the obligations included in the said tourist package (accommodation, transport, etc.).
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AGN AVOCATS – Tourism Law Department
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