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Case Details

Case Details
National ID N° de pourvoi : 94-82984
Member State France
Common Name Toumieux / Colon
Decision type Other
Decision date 12/06/1995
Court Cour de Cassation (Supreme court)
Subject
Plaintiff
Defendant
Keywords

Package Travel Directive, Article 1 Package Travel Directive, Article 2, 1.

1. Under article 2 of Directive 90/314/EEC of 13 June, a package holiday includes two of the following three components: a) transport; b) accommodation; and c) other tourist services that are not merely supplementary transport or accommodation services and constitute a significant part of the package. As such, signing up to an insurance policy does not constitute an integral component of the package.
2. Under articles 122-1 of the Consumer Protection Act (Code de la Consommation, CC) and 33 of the Decree of 29 December 1986, a professional must not make the sale of a product or service to a consumer dependant on the sale of another product or service where the purchase of this product or service is essentially optional.
3. It is a criminal offence for a managing director of a company to offer a consumer a package holiday that includes an obligation to pay for an insurance policy.
Through a travel agency acting as a broker, the Coulon couple concluded a package holiday contract with the Lagrange Voyage France Corporation, whose Chair was a Mrs Françoise Toumieux. The contract included a requirement to pay the costs of an insurance policy securing against the risks of contract cancellation and of providing assistance to persons or goods. The Coulon couple brought a case against Mrs Françoise Toumieux on the grounds that she had made the package holiday dependent on the provision of another service (insurance). Françoise Toumieux was found guilty on appeal.
The Supreme Court upheld the Court of Appeal’s ruling, which ordered Françoise Toumieux to pay a 1000-Franc fine for the offence committed. The ruling was made on the following grounds:
Under article 122-1 CC: “it is not permissible to refuse to sell a consumer a product or provide him with a service – except on legitimate grounds – and to make the sale of a product dependant on purchasing a set amount of that product or on purchasing another product or service at the same time. It is also not permissible to make the provision of a service dependant on the provision of another service or purchase of another product.”
This article applies to the sale of package holidays. As such, it was necessary to determine whether signing up to a compulsory insurance policy constituted an integral component of the package holiday contract.
The law that applied in this particular case predated the transposition of Directive 90/314/EEC of 13 June 1990 by the Act of 13 July 1992 and the Decree of 15 June 1994. Nevertheless, the Supreme Court used the definition of a “package holiday” given in article 2 of the Directive. According to this definition, a package holiday includes two of the following three components: a) transport; b) accommodation; and c) other tourist services that are not merely supplementary transport or accommodation services and constitute a significant part of the package. The court therefore concluded that package travel insurance did not constitute an integral part of the package. It can thus only be signed up to on an optional basis, as laid down in an inter-ministerial ruling of 14 June 1982.
As a result, by requiring her clients to sign up to a compulsory insurance policy, the managing director of the travel agency was guilty of a criminal offence punishable under article 33 of the Decree of 29 December 1986, because such an insurance policy could only be offered on an optional basis.
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