Joined Cases C‑349/18 to C‑351/18
Nationale Maatschappij der Belgische Spoorwegen (NMBS)
v
Mbutuku Kanyeba and Others
(Requests for a preliminary ruling from the vredegerecht te Antwerpen)
Judgment of the Court (Fifth Chamber), 7 November 2019
(References for a preliminary ruling — Rail transport — Passengers’ rights and obligations — Regulation (EC) No 1371/2007 — Article 3(8) — Transport contract — Concept — Passenger without a ticket at the time of boarding a train — Unfair terms in consumer contracts — Directive 93/13/EEC — Article 1(2) and Article 6(1) — General conditions of carriage of a railway undertaking — Mandatory statutory or regulatory provisions — Penalty clause — Powers of the national court)
1. Transport — Rail transport — Regulation No 1371/2007 — Rail passengers’ rights and obligations — Transport contract — Concept — Journey carried out by a passenger without a ticket at the time of boarding a freely accessible train — Included
(European Parliament and Council Regulation No 1371/2007, Art. 3(8))
(see paragraphs 36, 37, 48-53, operative part 1)
2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Finding that a term is unfair — Scope — Revision by the national court of the content of an unfair term — Moderation of the amount of the penalty imposed by a penalty clause on the consumer — Unlawful — Replacement of that term, in accordance with contract law, with a supplementary provision of national law by the national court — Unlawful — Exception
(Council Directive 93/13, Art. 6(1))
(see paragraphs 67-74, operative part 2)
Résumé
A passenger boarding a freely accessible train for the purposes of travel without acquiring a ticket concludes a ‘transport contract’
In the judgment in Kanyeba and Others (C‑349/18 to C‑351/18), delivered on 7 November 2019, the Court dealt, first, with the interpretation of the concept of a ‘transport contract’, for the purposes of Article 3(8) of Regulation No 1371/2007 on rail passengers’ rights and obligations, (1) and, secondly, with the powers of the national court where it establishes that a contractual term is unfair, for the purposes of Directive 93/13 on unfair terms. (2)
That judgment is part of three disputes between the Société nationale des chemins de fer belges (SNCB) (the Belgian national railway company) and three passengers, concerning additional surcharges claimed from the latter for having travelled by train without a transport ticket. Following those passengers’ refusal to regularise their situation, by paying either immediately the price of the journey, plus surcharges, or subsequently a surcharge, the SNCB sued them with a claim that they be ordered to pay it the sums due as a result of those breaches of its conditions of carriage. In that context, the SNCB claimed that the relationship between it and those passengers is not contractual, but administrative, given that the latter did not buy a ticket. Ruling on those disputes, the referring court questions the Court, first, regarding the nature of the legal relationship between a transport company and a passenger using the services of that company without a ticket and, secondly, regarding the scope of the protection offered by the regulation on unfair terms to such passengers.
As a first step, the Court clarified the concept of a ‘transport contract’, for the purposes of Article 3(8) of Regulation No 1371/2007. Thus, it first of all noted, in the light of the wording of that provision, that such a contract imposes in essence the obligation for the rail undertaking to provide to the passenger one or more transport services and the obligation for the passenger to pay the price, unless the service is provided free of charge. It follows therefrom that, on the one hand, by allowing free access to its train and, on the other hand, by boarding that train with an intention to travel, both the rail undertaking and the passenger demonstrate their agreement to enter into a contractual relationship, so that the conditions necessary for establishing the existence of a transport contract are, in principle, satisfied. Next, the Court examined the context of that provision and found that, in the light of that wording and of that context, that concept of a ‘transport contract’ is independent from the possession, by the passenger, of a ticket and that, consequently, it covers a situation in which a passenger boards a freely accessible train for the purposes of travel without having obtained a ticket. Finally, the Court noted that it would be contrary to the objective of protecting rail passengers, pursued by Regulation No 1371/2007, to consider that such a passenger can, on the sole ground that he does not have a ticket when he boards a train, be regarded as not being a party to a contractual relationship with the rail undertaking which grants free access to its trains, given that, in such a context, that passenger could, in circumstances beyond his control, be deprived of the rights that that regulation attaches to the conclusion of a transport contract. Moreover, the Court added that, in the absence of provisions in that regard in Regulation No 1371/2007, that interpretation of the concept of a ‘transport contract’, for the purposes of Article 3(8) of that regulation, is without prejudice to the validity of that contract or the consequences which could result from the non-performance, by one of the parties, of its contractual obligations, which remain governed by the applicable national law.
As a second step, the Court, at the outset, noted that, in accordance with Article 1(2) of Directive 93/13, the contractual terms which reflect, in particular, mandatory statutory or regulatory provisions are not subject to the provisions of that directive and that it is for the national court to verify whether the term at issue is covered by that exclusion from the scope of application of that directive. Relying however on the assumption that that term is covered by that scope of application, the Court examined the powers of the national court (3) where the latter established that a contractual term is unfair, for the purposes of Directive 93/13. Therefore, as regards a penalty clause provided for in a contract concluded between a seller or supplier and a consumer, the Court held, first, that Article 6(1) of that directive precludes that a national court which establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair moderate the amount of the penalty imposed on that consumer. Secondly, the Court ruled that that provision also precludes that a national court replace that term, in accordance with the principles of its contract law, with a supplementary provision of national law, except where the contract at issue cannot continue in existence in the event that the unfair term is deleted and where the cancelation of the contract in its entirety exposes consumers to particularly unfavourable consequences.