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 

submission 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 European Travel Agents’ and Tour Operators Associations, represents the tourism 

professionals from 31 European countries, some 70 000 companies with more than 500 000 direct 

employees. Based in Brussels, ECTAA stays in permanent contact with the European Institutions 

and other stakeholders. 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).

In 2013, ECTAA raised objections and concerns regarding IATA’s application to the US 

Department of Transportation (hereafter DOT) for approval of Resolution 787 submitted on 11 

March 2013. In its submission ECTAA provided a complete analysis on the potential 

incompatibilities between NDC and legal provisions 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 respectfully 

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 Email : 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 Open 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 communication 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 and meets travellers’ needs in a respectful way for their personal data.

ECTAA disagrees with the DOT statement that “(...) DOT approval or exemption of IATA standardsetting 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 member airlines at the Passenger Services Conference in October 2012. In short the 

Passenger Services Conference adopts two types of instruments: the resolutions and the 

recommended practices. According to IATA’s conferences resolutions manual, resolutions 

“...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 data exchanged. As we understand, these elements will be determined at further 

stage, according to the business needs. ECTAA would like to express its concerns in this respect. 

In this context, the exchanged data will vary from one airline to another. It will unavoidably lead to 

abusive interpretations and lack of coherence and have harmful effects for the customers. 

b) Comparison shopping, customized offers and competition issues
ECTAA, AISBL, Rue Dautzenberg 36, B – 1050 Bruxelles, Tel : +32 (0)2 644 34 50 / Fax : +32 (0)2 644 24 21 Email : 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 effectively 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 airline 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 data, any comparison will be 

impossible between such offers. 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 American 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 

airlines’ industry. We share AAI’s concerns that NDC was not adopted in an open process and that 

stakeholders 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 the airline or ticket agents asking for such information and storing such 

information. 

ECTAA also welcomes DOT’s willingness to preserve consumers’ ability to shop anonymously. It is 

indeed necessary for efficient airline distribution in competitive conditions. ECTAA also does 

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, the data to identify the passenger would notably 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 personal data, when eventually only one will be the actual carrier. 

Moreover, the transfer of personal data to get fare offers may involve airlines established in third 

countries with different 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 price offer. 
ECTAA, AISBL, Rue Dautzenberg 36, B – 1050 Bruxelles, Tel : +32 (0)2 644 34 50 / Fax : +32 (0)2 644 24 21 Email : 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 agents, as they will be responsible 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.

It is also unclear if the initial consent of a passenger to transmit his data to get a special offer for a 

specific flight ticket will cover possible transfers of data to other airlines, e.g. in case of rerouting or 

change of itinerary and whether it will cover all future offer requests, which a customer may seek 

for future travel.

NDC raises many concerns in Europe and the discussions still continue. Given the importance of 

data protection 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 with respect to the 

implications, which NDC is likely to cause for European customers and the use of their personal 

data. 

In summary, ECTAA considers that:

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

data which are 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 concerning the effective application of 

Directive 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 distribution model depriving consumers from a neutral and 

impartial distribution network.

 In a recent decision Google v. Spanish Data Protection Authority of the Court 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 resolution 787 go against this decision. If resolution 787 is implemented in 

Europe, the travel agents, as data collectors, may be confronted with potential legal actions 

introduced by customers. 

 The airline’s privacy policy may vary from one company to another, from one country to 

another. As ECTAA pointed out, the degree of data protection may 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 countries, the level of protection 

may not guaranteed. Still today, it is unclear who will 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 Email : secretariat@ectaa.eu / www.ectaa.eu

3. Conclusion 

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

still maintains 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 large recommend the adoption of the resolution as 

recommended practice, waiving 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 airlines 

distribution market. 

Finally, ECTAA is extremely concerned about the additional obligations imposed to travel agents in 

the NDC proposal. Travel agents will be requested to obtain customer’s consent for collecting, 

storing and processing the personal 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