The context is well known: a Reunion school client of the agency cancels, the day before departure, the discovery trip of a class in mainland France (Paris and Val-Cenis) whose departure was scheduled for March 4, 2020, at due to fear of the expansion of the Covid-19 virus and following an instruction from the rectorate. The agency refused reimbursement without charge in the absence of proven exceptional and unavoidable circumstances (CEI), specifying that the fear of Covid or personal convenience are not CEI and that the content of the contract was not impacted at all. the planned date of the trip. The court ruled in favor of the agency and, upon appeal from the school, the Court of Appeal confirmed this judgment.
The appeal judgment is what we call a species stop because it is based on the facts of the case in the light of the applicable texts (as opposed to a principle judgment).
To justify its request for reimbursement of costs – which the agency had borne 100% – the high school referred to a note from the rectorate dated March 2, 2020 which recommended against travel abroad or in mainland France in the clusters, as well as various communications from the WHO on the nature of a public health emergency of international concern of what was described at the time as an epidemic.
Following the arguments presented by the agency, the Court recalls the definitions of the package travel directive and the Tourism Code in the event of cancellation by the traveler due to exceptional and unavoidable circumstances (CEI), and recalls that the ‘Ordinance 315 having been canceled by the Council of State, it is appropriate to refer only to the Tourism Code. It then insists on the accumulation of the two conditions which must be met on the date of cancellation:
- Do IECs exist at the destination or in the immediate vicinity?
- Do these CEIs have significant consequences on the execution of the contract or on transport to the destination?
The Court then examines the elements produced by the high school and the agency and concludes that there was no cluster and therefore no CEI at destination (Paris and Haute-Savoie) on the date of the cancellation and that all the services planned to the contract were possible.
The legal reasoning is then implacable: in the absence of proof of CEI at destination existing on the date of cancellation and impacting the stay, the trip was therefore possible. The high school must bear the costs indicated in the contract, that is to say in this case where the agency had chosen the actual costs, 100% of the price, which the Court implicitly considers appropriate and reasonable in accordance with the Tourism Code.
Certainly, disputes linked to Covid are decreasing, but this decision is of more general interest because it recalls how the CEIs must be understood within the meaning of the Tourism Code and as defended by the agency, in agreement with the position of the EDV or of MTV, of which we had also communicated the 2020 Report. These principles have since been interpreted by the Court of Justice of the European Union in a judgment of June 8, 2023, which holds in particular that the IECs must be examined at the date of termination of the contract and that the publication of an official notice advising against a risk area is not sufficient to characterize them.
Emmanuelle Llop, founder of Equinoxe Avocats
