Refusal to sell services provision in the tourism sector
Article 1102 of the French Civil Code defines the principle of freedom of contract, according to which “everyone is free to enter into a contract or not, to choose his or her co-contractor and to determine the content and form of the contract within the limits set by law”.
However, this principle clashes with another, which requires the professional to remain in a position of permanent offer to the consumer, an indeterminate person moreover, leading them to be committed in the event of acceptance by the latter.
This raises the question of how to balance these two contradictory principles, particularly in the tourism sector where bookings are generally made via e-commerce, which accentuates the undifferentiated nature of the person with whom the professional must contract.
This question leads us to consider the cases of refusal of provision of services, to which every tourism service provider is tempted to resort, at one time or another, due to a material situation preventing them from welcoming the customer, or due to a reason specific to the customer themselves.
Legitimate grounds for refusing to sell a service
Article L.121-11 of the French Consumer Code provides the answer to the above question, stating that “it is forbidden to refuse a consumer the sale of a product or the provision of a service, except for a legitimate reason”.
In the absence of a legitimate reason, the fact that a provider of tourist services, including hotels, travel agencies or airlines, refuses to supply its services to a customer could be analyzed as a violation of the legal obligations to which it is subject, or as unjustified discrimination depending on the specific circumstances.
Extreme caution is therefore called for when it comes to circumventing this prohibition.
To determine the scope of the prohibition, we need to consider what constitutes a legitimate reason.
Legitimate grounds may arise from :
- a legal prohibition by virtue of a specific text: for example, article 1954 of the French Civil Code specifies that the hotelier’s obligation to accept the traveler’s luggage and effects does not apply to living animals. As a result, the hotelier may refuse a guest who wishes to bring his or her pet;
- circumstances preventing the hotel from accepting the customer, for example :
- force majeure events such as natural disasters, pandemics or civil unrest,
- an impossibility linked to the fact that, for a hotelier, his or her establishment is simply fully booked.
- a reason linked to the customer’s personality which makes it impossible to welcome him/her, due to :
- insulting comments or behavior, for example,
- behavior likely to endanger the safety of the establishment or other customers.
It is therefore easy to understand that the highly subjective criteria involved in analyzing a refusal that might be issued to a customer, particularly when the reason is attributable to the customer’s own personality, could be a source of contestation and, consequently, interpretation.
It should be noted that, in the event of litigation, the power to assess the quality of a legitimate reason lies with the judge.
Penalties for failure to provide a sufficiently legitimate reason
The legitimate motive must be indisputable and incontestable in order to circumvent the offence laid down in the Consumer Code, which is still punishable by “the fine laid down for 5th-class contraventions” under article R. 132-1 of the same Code.
In addition, any motive based on discrimination between individuals prohibited by law is likely to fall within the scope of an offence under article 225-1 of the French Penal Code, which defines the types of discrimination concerned on the basis mainly of the following :
- family status,
- physical appearance,
- the particular vulnerability resulting from their economic situation, apparent or known,
- their surname,
- their place of residence,
- their state of health,
- their loss of autonomy,
- genetic characteristics,
- sexual orientation,
- gender identity,
- political opinions,
- union activities,
- their status as a whistle-blower, facilitator or person in contact with a whistle-blower,
- their ability to express themselves in a language other than French,
- their actual or supposed membership or non-membership of a particular ethnic group, nation, alleged race or religion,
As a result, and given that the above-mentioned texts make no exception for the tourism sector, they must be scrupulously applied by professionals in the sector, at the risk of being confronted with a challenge by the consumer to the legitimate grounds for refusal to sell, and of exposing themselves to criminal sanctions in particular.
In any event, if you would like to obtain a legal opinion specific to your case, or further information about refusals to sell services, or if you would like assistance if one of your customers challenges one of the reasons you have given for such a refusal, our lawyers are at your disposal to answer all your questions and advise you.
Our meetings can be held face-to-face or by videoconference. You can make an appointment directly online at www.agn-avocats.com.
AGN AVOCATS – Tourism
09 72 34 24 72