On 7 November 2019, the Court of Justice passed its judgment in joined Cases C‑349/18, C-350/18 and C-351/18, Nationale Maatschappij der Belgische Spoorwegen (NMBS) v Mbutuku Kanyeba, Larissa Nijs, Jean-Louis Anita Dedroog, concerning the interpretation of Article 9(4) of Regulation No 1371/2007 on rail passengers’ rights and obligations and of Articles 3 and 6 of Directive 93/13/EEC on unfair terms in consumer contracts. The requests have been made in proceedings between the Nationale Maatschappij der Belgische Spoorwegen (Belgian national railway company; SNCB) and Mr Mbutuku Kanyeba, Mrs Larissa Nijs and Mr Jean-Louis Anita Dedroog concerning the additional surcharges claimed from the latter for having travelled by train without a transport ticket.

On 7 November 2019, the Court of Justice passed its judgment in joined Cases C‑349/18, C-350/18 and C-351/18, Nationale Maatschappij der Belgische Spoorwegen (NMBS) v Mbutuku Kanyeba, Larissa Nijs, Jean-Louis Anita Dedroog, concerning the interpretation of Article 9(4) of Regulation No 1371/2007 on rail passengers’ rights and obligations and of Articles 3 and 6 of Directive 93/13/EEC on unfair terms in consumer contracts. The requests have been made in proceedings between the Nationale Maatschappij der Belgische Spoorwegen (Belgian national railway company; SNCB) and Mr Mbutuku Kanyeba, Mrs Larissa Nijs and Mr Jean-Louis Anita Dedroog concerning the additional surcharges claimed from the latter for having travelled by train without a transport ticket.

Between 2013 and 2015, the three defendants had travelled by train without a ticket, in breach of SNCB’s general conditions of carriage.  Since none of them used the opportunity offered by the SNCB to regularize their situations by paying in different ways, the latter sued them before the vredegerecht te Antwerpen (Magistrates’ Court, Antwerp, Belgium; the “referring court”), asking for their sentence to pay the sums due.  Since the Cases were joined, and considering the interpretation of the European legislation as needed, the referring court decided to stay the proceedings and to ask the Court of Justice five preliminary questions.

By its first question, the referring court asked whether, in essence, Article 3(8) of Regulation No 1371/2007 must be interpreted as meaning that a situation in which a passenger boards a freely accessible train for the purposes of travel without acquiring a ticket comes within the concept of a “transport contract” for the purposes of that provision. According to the Court of Justice, in light not only of the wording of Article 38 of Regulation No 1371/2007 but also of its context, the concept of “transport contract” must be understood as being independent from the possession, by the passenger, of a ticket. The latter, indeed, is only the instrument embodying the transport contract for the purposes of Regulation No 1371/2007.

By its third and fifth questions, which the Court of Justice examined together, the referring court asked whether, in essence, Article 6(1) of Directive 93/13 must be interpreted as precluding that a national court, which establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair, moderates the amount of the penalty imposed on that consumer or replaces that term with a supplementary provision of national law. In that context, that referring court also asked whether Directive 93/13 must be interpreted as precluding, in circumstances such as those at issue in the main proceedings, that the national court apply, in addition, provisions of its national law relating to non-contractual liability. According to the Court of Justice, Article 6(1) of Directive 93/13 prevents a national court having established that a penalty clause in a contract is unfair from moderating its amount or from replacing that clause with a supplementary provision of national law, except where the contract cannot continue to exist if the unfair clause is deleted and the cancelation of the contract in its entirety exposes consumers to particularly unfavourable consequences.

Having regard to the reply given to the first, third and fifth questions, the Court deemed unnecessary to reply to the second and fourth ones.

Marco Stillo