Opinion of the Advocate General — ECLI:EU:C:2022:690
Date: 2022-09-15
Language of the case: French
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Translation C-407/21 – 1 
Case C-407/21 
Request for a preliminary ruling 
Date lodged:  
2 July 2021 
Referring court:  
Conseil d’État (France) 
Date of the decision to refer:  
1 July 2021 
Applicant:  
Union fédérale des consommateurs – Que choisir (UFC – Que 
choisir) 
Consommation, logement et cadre de vie (CLCV) 
Defendant:  
Premier ministre 
Ministre de l’Économie, des Finances et de la Relance 
  
CONSEIL D'ETAT  
[…] 
UNION FEDERALE DES 
CONSOMMATEURS – QUE CHOISIR 
and Another 
The Conseil d'État acting in its judicial capacity 
[…] 
Decision of 1 July 2021 
Having regard to the following procedure: 
EN 
REQUEST FOR A PRELIMINARY RULING OF 1.7.2021 – CASE C-407/21 
 
2  
By an application, supplementary written pleadings and a reply, registered on 
7 July, 20 July and 14 December 2020 at the Judicial Affairs Secretariat of the 
Conseil d’État (Council of State), the Union fédérale des consommateurs – Que 
choisir and the Confédération consommation logement cadre de vie (French 
consumer associations) claim that the Council of State should: 
(1) annul as ultra vires ordonnance No 2020-315 du 25 mars 2020 relative aux 
conditions financières de résolution de certains contrats de voyages touristiques et 
de séjours en cas de circonstances exceptionnelles et inévitables ou de force 
majeure (Order No 2020-315 of 25 March 2020 on the financial conditions for the 
rescission of certain tourist travel and holiday contracts in the event of 
unavoidable and extraordinary circumstances or force majeure), as well as the 
publication of 31 March 2020 of the direction de l’information légale et 
administrative (Office of Legal and Administrative Information) entitled 
‘Coronavirus: quels droits en cas d’annulation de vos vacances ?’ (‘Coronavirus: 
what are your rights in the event of cancellation of your holiday?’), the ‘Foire aux 
questions’ (‘Frequently asked questions’) of 7 April 2020 of the direction générale 
de la concurrence, de la consommation et de la répression des fraudes (General 
Directorate for Fair Trading, Consumer Affairs and Fraud Control) entitled 
‘Nouvelles règles de remboursement dans le secteur du tourisme’ (‘New refund 
rules in the tourism sector’) and the letter of 9 April 2020 of the direction des 
affaires juridiques du ministère de l’économie et des finances et du ministère de 
l’action et des comptes publics (Legal Affairs Department of the Ministry of the 
Economy and Finance and the Ministry of Public Action and Accounts); 
[…] 
They maintain that: 
- the decisions which they contest infringe the provisions of Article 12 of 
Directive (EU) 2015/2302 of the European Parliament and of the Council of 
25 November 2015 on package travel and linked travel arrangements, amending 
Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European 
Parliament and of the Council and repealing Council Directive 90/314/EEC 
inasmuch as they create the possibility for package travel operators or retailers to 
offer a mere credit note or replacement package travel when notification is given 
of the termination of a contract for unforeseeable and extraordinary 
circumstances, instead of the full refund required by the directive, and inasmuch 
as they obstruct the refund to the consumer of the full amount of any payments 
made for a minimum of 18 months, whereas the directive provides that that 
payment must take place within a maximum period of 14 days after notification is 
given of the termination of the contract; 
- the decisions which they contest are vitiated by a manifest error of 
assessment inasmuch as, firstly, they concern an excessively long period of time, 
which goes beyond the period of lockdown, secondly, they introduce an 
excessively long time limit for clients to receive a full refund of any payments 
UFC – QUE CHOISIR AND CLCV 
 
3 
made, thirdly, they undermine free competition in the single market and the 
harmonisation objective of the directive since they apply only to French law 
contracts and, fourthly, the duration of the derogation or its effects on consumers 
and the package travel market are neither necessary, nor justified, nor 
proportionate to the objectives of the measure; 
- […] 
By a defence, registered on 12 October 2020, the ministre de l'économie, des 
finances et de la relance (Minister for the Economy, Finance and Recovery) 
contends that the application should be dismissed. He maintains that the pleas in 
law in the application are unfounded.  
[…] 
Having regard to: 
- the Treaty on the Functioning of the European Union, in particular 
Article 267 thereof; 
- Directive (EU) 2015/2302 of 25 November 2015; 
- […]; 
- […]; 
- loi No 2020-290 du 23 mars 2020 (Law No 2020-290 of 23 March 2020); 
- […]; 
- […]; 
[…] 
Whereas: 
1 The Union fédérale des consommateurs – Que choisir and the Confédération 
consommation logement cadre de vie seek to have annulled as ultra vires the 
Order of 25 March 2020 on the financial conditions for the rescission of certain 
tourist travel and holiday contracts in the event of unavoidable and extraordinary 
circumstances or force majeure, as well as the publication of 31 March 2020 of 
the Office of Legal and Administrative Information entitled ‘Coronavirus: what 
are your rights in the event of cancellation of your holiday?’, published on the 
website ‘service-public.fr’, and the ‘Frequently asked questions’ of 7 April 2020 
of the General Directorate for Fair Trading, Consumer Affairs and Fraud Control 
entitled ‘New refund rules in the tourism sector’ and the letter of 9 April 2020 of 
the Legal Affairs Department of the Ministry of the Economy and Finance and the 
Ministry of Public Action and Accounts, both published on the website of the 
Minister for the Economy and Finance. The form of order sought in the 
REQUEST FOR A PRELIMINARY RULING OF 1.7.2021 – CASE C-407/21 
 
4  
application of the Union fédérale des consommateurs – Que choisir and the 
Confédération consommation logement cadre de vie must be regarded as directed 
against the provisions of the Order of 25 March 2020 and the publications of 
31 March, 7 and 9 April 2020, in so far as they concern package travel and linked 
travel arrangements.  
[…] 
2 […] 
Pleas of substantive legality: 
3 On the one hand, under Article 12 of the Directive of the European Parliament and 
of the Council of 25 November 2015 on package travel and linked travel 
arrangements ‘1. Member States shall ensure that the traveller may terminate the 
package travel contract at any time before the start of the package. Where the 
traveller terminates the package travel contract under this paragraph, the 
traveller may be required to pay an appropriate and justifiable termination fee to 
the organiser. The package travel contract may specify reasonable standardised 
termination fees based on the time of the termination of the contract before the 
start of the package and the expected cost savings and income from alternative 
deployment of the travel services. In the absence of standardised termination fees, 
the amount of the termination fee shall correspond to the price of the package 
minus the cost savings and income from alternative deployment of the travel 
services. At the traveller’s request[,] the organiser shall provide a justification for 
the amount of the termination fees. 2. Notwithstanding paragraph 1, the traveller 
shall have the right to terminate the package travel contract before the start of the 
package without paying any termination fee in the event of unavoidable and 
extraordinary circumstances occurring at the place of destination or its immediate 
vicinity and significantly affecting the performance of the package, or which 
significantly affect the carriage of passengers to the destination. In the event of 
termination of the package travel contract under this paragraph, the traveller 
shall be entitled to a full refund of any payments made for the package, but shall 
not be entitled to additional compensation. 3. The organiser may terminate the 
package travel contract and provide the traveller with a full refund of any 
payments made for the package, but shall not be liable for additional 
compensation, if: (a) the number of persons enrolled for the package is smaller 
than the minimum number stated in the contract and the organiser notifies the 
traveller of the termination of the contract within the period fixed in the contract, 
but not later than: (i) 20 days before the start of the package in the case of trips 
lasting more than six days; (ii) seven days before the start of the package in the 
case of trips lasting between two and six days; (iii) 48 hours before the start of the 
package in the case of trips lasting less than two days; or (b) the organiser is 
prevented from performing the contract because of unavoidable and 
extraordinary circumstances and notifies the traveller of the termination of the 
contract without undue delay before the start of the package. 4. The organiser 
shall provide any refunds required under paragraphs 2 and 3 or, with respect to 
UFC – QUE CHOISIR AND CLCV 
 
5 
paragraph 1, reimburse any payments made by or on behalf of the traveller for 
the package minus the appropriate termination fee. Such refunds or 
reimbursements shall be made to the traveller without undue delay and in any 
event not later than 14 days after the package travel contract is terminated. 5. 
With respect to off-premises contracts, Member States may provide in their 
national law that the traveller has the right to withdraw from the package travel 
contract within a period of 14 days without giving any reason.’ It follows, inter 
alia, from those provisions, that in the event of termination of a package travel 
contract, the traveller is to be entitled to a refund of the full amount of any 
payments made for the package minus, where applicable, an appropriate 
termination fee, within a period of 14 days following the termination of the 
contract.  
4 Under Article 4 of that directive, ‘… Member States shall not maintain or 
introduce, in their national law, provisions diverging from those laid down in this 
Directive, including more or less stringent provisions which would ensure a 
different level of traveller protection.’  
5 On the other hand, the contested order was made on the basis of the power 
conferred on the Government by Article 11 of the loi du 23 mars 2020 d’urgence 
(Emergency Law of 23 March 2020) ‘in order to deal with the economic, financial 
and social consequences of the spread of the COVID-19 epidemic and the 
consequences of the measures taken to limit that spread, and in particular in 
order to prevent and limit the cessation of operations on the part of natural and 
legal persons engaged in an economic activity and of associations, as well as its 
impact on employment’. It provides that, where a travel and holiday sales contract 
is rescinded between 1 March 2020 and 15 September 2020, ‘the organiser or 
retailer may offer, instead of a refund of the full amount of any payments made, a 
credit note’ for an amount equal to the full amount of any payments made under 
the rescinded contract. That offer is to be made at the latest within a period of 
three months from notification of the rescission of the contract. It is to be valid for 
18 months. It is only at the end of that period of 18 months and failing acceptance, 
by the client, of an identical or equivalent service to that for which the rescinded 
contract provided and which was offered to the client, that the trading entity will 
be required to refund to the client the full amount of any payments made.  
6 It is apparent from the documents in the case file, in particular the report to the 
President of the Republic relating to that order, that those provisions were made in 
order to safeguard the cash flow and solvency of the service providers covered by 
those provisions, in a context in which more than 7 000 travel and holiday 
operators registered in France, faced, on account of the COVID-19 pandemic 
simultaneously affecting not only France and the majority of the countries in 
Europe but also almost all continents, with cancellations of service bookings on a 
scale never previously seen and almost no new bookings, found themselves in 
serious difficulty, and in which an immediate refund in respect of all the cancelled 
services was liable, in the light of those circumstances, to jeopardise the economic 
operators concerned and, consequently, the possibility, for clients, to be able to 
REQUEST FOR A PRELIMINARY RULING OF 1.7.2021 – CASE C-407/21 
 
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obtain a refund of any payments made. It is also apparent from the documents in 
the case file that the amount of the credit notes issued by French trading entities as 
at 15 September 2020, the end of the application of the contested order, was in the 
region of EUR 990 million, which represents 10% of the turnover of the sector in 
a normal year.  
7 The applicant associations maintain that the provisions of the contested order 
infringe Article 12 of the Directive of the European Parliament and of the Council 
of 25 November 2015 on package travel and linked travel arrangements, which 
provides for the right for the traveller, in the event of termination of a package 
travel contract, to be provided with a refund of the full amount of any payments 
made under that contract within a period of 14 days following its termination, and 
undermine free competition in the single market and the harmonisation objective 
of the directive. 
8 The response to those pleas in law depends on the questions of, firstly, whether 
Article 12 of the Directive of the European Parliament and of the Council of 
25 November 2015 on package travel and linked travel arrangements must be 
interpreted as obliging the organiser of package travel, in the event of termination 
of the contract, to refund in cash the full amount of any payments made for the 
package, or as authorising an equivalent refund, in particular in the form of a 
credit note for an amount equal to the amount of any payments made; secondly, if 
it is the case that those refunds refer to a cash refund, whether the health crisis 
related to the COVID-19 epidemic and its effects on travel operators, which, in 
view of the exceptional scale of that pandemic as recognised by the World Health 
Organisation, have suffered as a result an exceptional fall in their turnover 
estimated at between 50 and 80% and, in the case of package tour operators, have 
30 000 employees in France and a turnover of nearly EUR 11 billion, are capable 
of justifying and, if so, under what conditions and subject to what limitations, a 
temporary derogation from the obligation for the organiser to refund to the 
traveller the full amount of any payments made for the package within a period of 
14 days following the termination of the contract, laid down in Article 12(4) of the 
Directive of the European Parliament and of the Council of 25 November 2015 on 
package travel and linked travel arrangements; finally, if the answer to the 
previous question is in the negative, whether it is possible, in the circumstances 
mentioned above, to adjust the temporal effects of a decision annulling national 
legislation which is contrary to Article 12(4) of the Directive of the European 
Parliament and of the Council of 25 November 2015 on package travel and linked 
travel arrangements.  
9 Those questions play a decisive role in the resolution of the dispute on which the 
Council of State must decide. They present serious difficulties. It is necessary, 
consequently, to refer them to the Court of Justice of the European Union pursuant 
to Article 267 of the Treaty on the Functioning of the European Union and, until 
that court has given its ruling, to stay the proceedings brought by the Union 
fédérale des consommateurs – Que choisir and the Confédération consommation 
logement cadre de vie. 
UFC – QUE CHOISIR AND CLCV 
 
7 
HAS DECIDED AS FOLLOWS: 
Article 1: The proceedings brought by the Union fédérale des consommateurs – 
Que choisir and the Confédération consommation logement cadre de vie are 
stayed until the Court of Justice of the European Union has ruled on the following 
questions: 
1 - Must Article 12 of the Directive of the European Parliament and of the 
Council of 25 November 2015 on package travel and linked travel arrangements 
be interpreted as obliging the organiser of package travel, in the event of 
termination of the contract, to refund in cash the full amount of any payments 
made for the package, or as authorising an equivalent refund, in particular in the 
form of a credit note for an amount equal to the amount of any payments made? 
2 - If it is the case that those refunds refer to a cash refund, are the health crisis 
related to the COVID-19 epidemic and its effects on travel operators, which have 
suffered as a result of that crisis a fall in their turnover estimated at between 50 
and 80% and represent more than 7% of France’s gross domestic product and, in 
the case of package tour operators, have 30 000 employees in France and a 
turnover of nearly EUR 11 billion, capable of justifying and, if so, under what 
conditions and subject to what limitations, a temporary derogation from the 
obligation for the organiser to refund to the traveller the full amount of any 
payments made for the package within a period of 14 days following the 
termination of the contract, laid down in Article 12(4) of the Directive of the 
European Parliament and of the Council of 25 November 2015 on package travel 
and linked travel arrangements? 
3 - If the answer to the previous question is in the negative, is it possible, in 
the circumstances mentioned above, to adjust the temporal effects of a decision 
annulling national legislation which is contrary to Article 12(4) of the Directive of 
the European Parliament and of the Council of 25 November 2015 on package 
travel and linked travel arrangements? 
[…]