ECTAA, AISBL, Rue Dautzenberg 36, B

– 1050 Bruxelles, Tel : +32 (0)2 644 34 50 / Fax : +32 (0)2 644 24 21
E

- mail : secretariat@ectaa.eu / www.ectaa.eu Ref. EG14

- 031/9416221

US Department of Transportation 1200 New Jersey Avenue SE Washington DC 20590
United States of America

Brussels, 10 June 2014

Re: DOT Order to Show Cause (Docket OST

– 2013

– 0048)

– Statement of objection
submiss ion by ECTAA

Table of Contents:

1. Introduction

2. ECTAA’s key objections: a) Modernized data exchange b) Comparison shopping, customized offers and competition issues c) Privacy and anonymous shopping

– Data Protection

3. Conclusion

1. Introduction

ECTAA, the Europea n Travel Agents’ and Tour Operators Associations, represents the tourism professionals from 31 European countries, some 70 000 companies with more than 5 00 000 direct employees. B ased in Brussels, ECTAA stays in permanent contact with the European Institut ions
and other sta keholders. Having receiving strong opinions from the travel community in Europe, ECTAA has been actively monitoring the developments related to the New Distribution Capability (hereafter NDC)

.

I n 2013, ECT AA raised objections and concern s regarding IATA’s application to the US Department of Transportation ( hereafter DOT) for approval of Resolution 787 su bmitted on 11
March 2013. In its submission ECTAA provided a complete analysis on the potential incompatibilities between NDC and legal p rovisions in place, in particular in Europe. ECTAA pointed out in particular incompatibilities between NDC and antitrust provisions, as well as the
violation of the European Data Protection Directive 95/46

. In its submission ECTAA r espectfully
asked DOT to reject the IATA’s resolution 787 in its current format.ECTAA, AISBL, Rue Dautzenberg 36, B

– 1050 Bruxelles, Tel : +32 (0)2 644 34 50 / Fax : +32 (0)2 644 24 21 E

mail : secretariat@ectaa.eu / www.ectaa.eu ECTAA took note of the Agreement between IATA and Open Allies signed on 22 January 2014
and filed with the DOT on the same day.

The proposed decision acknowledges the agreement between IATA and O pen Allies. ECTAA wishes to submit the following comments.

2. ECTAA’s key objections:

a) Modernized data exchange :

ECTAA is not convinced that resolution 787 would help modernizing airline distribution by creating the same electronic language in communica tion between airlines, travel agents, GDS and
consumers. If we follow what was said about NDC in recent months , NDC will not prevent the
creation of other standards. Our understanding is that other standards could co

- exist with NDC.
DOT confirmed that each airline is free to choose its own data exchange methodology. Therefore, NDC will not necessarily unify the electronic language used in airline distribution. Furthermore, the system in place is efficient an d meets travellers’ needs in a respectful way for their personal data.

ECTAA disagrees with the DOT statement that “(...) DOT approval or exemption of IATA standard

setting agreements does not mandate adherence to them. IATA has no power to enforce compliance with its resolutions and recommended practices , and we have considered them to be

non

- binding and voluntary.”

We do believe that it is necessary to provide further clarifications in respect of the mandatory nature of IATA provisions. As mentioned by DOT, resolution 787 proposed by IATA was agreed by
the IATA me mber airli nes at the Passenger Services Co nference in October 2012. In short the Passenger Services Conference adopts two types of instruments: the resolutions and the recommended practices. According to IATA’s conference s resolution s manual, re solutions “...regulate procedural matters, binding on members ...”.

According to the agreement between accredited agents and airlines

– the passenger sales agency agreement

- embodied in resolution 824, resolutions are binding for agents as well, when issuing
tickets on behalf of airlines. In other words once NDC based on resolution 787 will be implemented, any airline will be able to make the provisions of resolution 787 mandatory for any accredited agent issuing tickets on behalf of that airline.

ECTAA would like to underline that NDC as a data exchange standard does not determine the
content of the d ata exchanged. As we understand, these elements will be determin ed at further stage, according to the business needs. ECTA A would like to express its concern s in this respect. In this context, the exchanged data will vary from one airline to another. It will unavoidably lead to abusive interpre tations and lack of coherence and have harmful effects for the customers.

b) Comparison shopping, customized offers an d competition issuesECTAA, AISBL, Rue Dautzenberg 36, B

– 1050 Bruxelles, Tel : +32 (0)2 644 34 50 / Fax : +32 (0)2 644 24 21 E

mail : secretariat@ectaa.eu / www.ectaa.eu As pointed out by DOT, “ comparison shopping under the current system is generally limited strictly to comparing fares ”. ECTAA believes that comparisons based on objective elements, such as fares, are the best way to determine effectiv ely the best price on the market. The collection of personal data is not necessary to get a price offer. The effect of personalised offers, based on customer’s specific requests, would exclude every possibility to check whether the proposed price by an air line is indeed the lowest available price. ECTAA does not believe that NDC will allow differentiating airline products. It will have rather the opposite effects. As the price offers will be based on individual elements and, as we understand, on different d ata, any comparison will be impossible between such o ffers. The market will loose all landmarks , what will lead to the increase of prices and affect price transparency. In this sense, DOT conditions are insufficient.

ECTAA supports the opinion of the Ame rican Antitrust Institute (AAI), which compared NDC to an agreement of the 11 airlines in the PDG of IATA to impose new distribution standards on the entire

airl ines ’ industry. We share AAI’s concern s that NDC was not adopted in an open process and that

st akeholders were not consulted. We support AAI’s statement that NDC is an “agreement between rivals on the rules of competition” and will create an environment not only for higher prices, but also restriction of choice and less transparency.

c) Privacy and anonymous shopping

– Data Protection

ECTAA welcomes DOT’s requirement that the implementation of any data standard, existing or future, that asks a passenger to voluntarily supply personal information will be subject to the applicable privacy policy of th e airline or ticket agents asking for such information and storing such
information.

ECTAA also welcomes DOT’s will ingness to preserve consumers’ ability to shop anonymously. It is indeed necessary for efficient airline distributio n in competitive condit ions. ECTAA also do es believe that airlines should not be allowed to request data information from customers in order to give a simple price offer.

ECTAA wishes to underline that the provisions of the EU Directive 95/46 will apply to NDC and potential incompatibilities with the EU legal framework must also be taken into consideration

.

Under the NDC proposal , t he data to identify the passenger would no tably include information such as age, marital status or contact details, as mentioned in the § 3.1.1.1.2 of the resolution. In practice, in order to be able to obtain a “personalised offer” a travel agent will be required to transmit a series of personal data collected from the customer to one or several airlines. Indeed a customer may wish to get an offer from different carriers and several carriers may be involved in a complex itinerary with multi

- segment tickets. Travel agents may end up in a situation where more than half a dozen airlines will access passenger’s perso nal data, when eventually only one will be the actual carrier.

Moreover, t he transfer of personal data to ge t fare offers may involve airlines established in third
countries with differen t levels of data protection as defined in article 25 of the European Directive.

ECTAA is of the opinion that the data listed in § 3.1.1.1.2 of the resolution are totally disproportionate and have little or no relevance at all at the stage of making a pri ce offer.ECTAA, AISBL, Rue Dautzenberg 36, B

– 1050 Bruxelles, Tel : +32 (0)2 644 34 50 / Fax : +32 (0)2 644 24 21 E

mail : secretariat@ectaa.eu / www.ectaa.eu This disproportionate collection of personal data will also impose to travel agents an excessive administrative burden, as they will be required to seek the customer’s consent on personal data transfer before being able to make just a fare offer , not even to conclude the contract. Furthermore,
resolution 787 will impose additional liability to travel agent s , as they will be res ponsible for collecting the data under the customer’s proper consent and then storing and processing the data

. This will have a significant impact on the entire travel agents’ community.

I t is also unclear if the initial consent of a passenger to transmit his data to get a special offer for a specif ic flight ticket will cover possible transfer s of data to other airlines, e .g. in case of re routing or change of itinerary and whether it will cover all future offer requests, which a c ustomer may seek
for future travel.

NDC raises many concerns in Europe and the discussions still continue

. Given the importance of data protectio n under EU legislation, ECTAA met with the European Data Protection Supervisor as

well as National Data Protection authorities ’ representatives of the so called Art.29 Working Party in May 2014 . The European and national experts expressed their concerns wi th respect to the implications, which NDC is likely to cause for European customers and the use of their personal

data

.

In sum mary, ECTAA considers that :

 Resolution 787 is establishing principles concerning the collection of potential customer’s

data wh ich ar e completely disproportionate to get a single fare quote or ticketing purposes.

 Resolution 787 is totally unclear on who will have access to such data, how long will the data be kept, which guarantees are provided concernin g the e ffective applicatio n of

D irective 45/96 in particular with respect to third country airlines.

 The binding nature of resolution 787 in particular on travel agents will significantly affect the current passenger transport distributi on model depriving consumers fro m a neutral and impartial distribution network

.

 In a recent decision Google v. Spanish Data Protection Authority of the C ourt of European Union, the so called “right to be forgotten” was confirmed by the Court . It gives the right to EU citizens to request to delete their sensitive data from the internet . ECTAA considers that
NDC and r esolution 787 go against this decision. If r esolution 787 is implemented in Europe, the tra vel agents, as data collectors, may be confronted with potential legal acti ons introduced by customers.

 The airline ’s privacy policy may vary from one company to another, from one coun try to
another. As ECTAA pointed out, the degree of data protection ma y vary significantly according to the appropriate law of the country . Therefore, if the personal data of EU citizens is exchanged with airline companies based in third count ries, the level of protection

may not guaranteed. Still today, it is unclear who wi ll be able to access to the data collected and for how long . It is a serious concern for the European Data Protection Authorities.ECTAA, AISBL, Rue Dautzenberg 36, B

– 1050 Bruxelles, Tel : +32 (0)2 644 34 50 / Fax : +32 (0)2 644 24 21 E

mail : secretariat@ectaa.eu / www.ectaa.eu 3. Conclusion

While ECTAA welcomes the DOT proposal to preserve the possibility of anonymous shopping, it

still maintai ns its reservation concerning the resolution 787 and respectfully request that DOT does not approve the resolution in its current format.

ECTAA and the European Travel Industry at larg e recommend the adoption of the resolution as recommended practice, wa iving its binding nature for IATA Members’ airlines and travel agents.

ECTAA considers that the implementation of Resolution 787 will be against the public interest

, because of numerous privacy issues and will seriously affect the competition on the airl ines
distribution market

.

Finally, ECTAA is extremely concerned about the additional obligations imposed to travel agents in the NDC proposal. T ravel agent s will be requested to obtain customer’s consent for collecting, storing and processing t he persona l data. This will impose additional administrative burden and further liability for the entire travel agents’ community.

Ewa Grabiak ECTAA Legal Advisor European Group of Travel Agents and Tour Operators Associations egrabiak@ectaa.org