On December 8, 2020, the FCA dismissed a complaint by French travel cooperative CEDIV on behalf of 55 member travel agencies against several airlines which denied travellers refunds for their flights, cancelled due to the COVID-19 pandemic (the “Decision”).[1]

In June 2020, CEDIV filed a complaint with the FCA against 90 airlines for allegedly agreeing, through the International Air Travel Association (the “IATA”) to disregard their obligation to reimburse passengers for cancelled flights booked through travel agencies. While, pursuant to European Regulation n°261/2004, airlines must either refund passengers’ tickets or re-route them under satisfactory conditions,[2] the airlines instead granted vouchers. CEDIV argued that such a behaviour constituted a concerted practice in breach of Articles 101 TFEU and L. 420-1 of the French Commercial Code, as well as abuses of collective dominance and of a situation of economic dependency in violation of Articles 102 TFEU and L. 420-2 of the French Commercial Code. Additionally, CEDIV asked the FCA for interim measures to put an end to the airlines’ denials of refunds.

The FCA rejected the complaint and request for interim measures on the grounds that CEDIV failed to provide evidence of the concerted practices to prevent refunding cancelled flights.[3]

The FCA considered that the alleged parallel conduct changed over time and rather resulted from the airlines’ individual non-coordinated responses to the COVID-19 pandemic.[4] The FCA found no evidence that the IATA had helped coordinate the airlines’ behaviour and that some of the airlines allegedly involved were not even members of the association.[5] The FCA also noted that certain airline companies, such as Air France, Lufthansa, and Qatar Airways, changed their policy by either starting to refund cancelled flights or improved the conditions of use of their vouchers. Following the same reasoning, the FCA dismissed the claims of abuses of collective dominance and of economic dependency.[6]

However, the FCA considered that a number of airlines may have breached their obligation to inform passengers of their right to a refund for a cancelled flight and unduly forced them to accept a voucher. The FCA concluded that this issue rather fell within the French Civil Aviation Authority’s jurisdiction.[7]

[1]              FCA, Decision No. 20-D-21 of December 8, 2020 regarding practices implemented in the travel sector.

[2]              Commission Regulation No. 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJ 2004 L46/1.

[3]              Decision, para. 80.

[4]              Decision, para. 89.

[5]              Decision, paras. 81 and 88.

[6]              Decision, paras. 105 and 111.

[7]              Decision, para. 79.