EU-tuomioistuin: Liputtoman junamatkustajan ja rautatieyhtiön välille syntyy sopimus

When a passenger boards a train without a ticket, he concludes a contract with the carrier

That is the case where access to the train is free.

In accordance with its conditions of carriage, the Belgian national railway company (SNCB) penalises passengers who travel by train without being in possession of a valid ticket. At the time of the facts at issue, those passengers were given the opportunity to regularise their situation by paying immediately the price of the journey, plus an ‘on board’ surcharge, or, within 14 days of after the establishment of the infringement, a surcharge of €75. After that 14-day deadline, there remained the opportunity to pay a surcharge of €225.
In the present case, three passengers who were penalised made no use of those opportunities. Therefore, the SNCB sued them before the Vredegerecht te Antwerpen (Magistrates’ Court, Antwerp, Belgium), seeking an order that they pay it, respectively, the amounts of €880.20, €103.90 and €2,394. In the context of those applications, the SNCB claimed that the legal relationships between it and each of the passengers in question are not contractual, but regulatory, since the latter did not purchase tickets.

As regards the question whether the possession, by the passenger, of a ticket is essential for the purposes of considering that there exists a ‘transport contract’, the Court considers that the ticket is only the instrument which embodies the transport contract. The concept of ‘transport contract’ is independent from the possession, by the passenger, of a ticket and it thus covers a situation in which a passenger boards a freely accessible train for the purposes of travel without having obtained a ticket. In the absence of provisions in that regard in Regulation No 1371/2007, that interpretation is however without prejudice to the validity of that contract or the consequences which could result from the fact that a party fails to perform its contractual obligations, which remain governed by the applicable national law.

As regards the power of the national court to moderate the penalty clause which is, as the case may be, unfair, the Court notes that that clause is part of the SNCB’s general conditions of carriage, in relation to which the national court states that they are ‘considered to be generally binding on the basis of their regulatory nature’ and that they are part of a ‘publication in an official State publication’. The contractual terms which reflect, in particular, mandatory statutory or regulatory provisions are not to be subject to the provisions of the directive.

However, that exclusion from the scope of application of the directive requires, according to the Court’s case-law, two conditions to be met. Firstly, the contractual term must reflect a statutory or regulatory provision and, secondly, that provision must be mandatory. Determining whether those conditions have been satisfied is a matter for the national court.

If those conditions are not satisfied in the view of the national court and it considers that the penalty clause comes therefore within the scope of application of the directive, the Court notes that that court may not moderate the amount of the penalty deemed to be unfair and may also not replace that clause, in accordance with the national law on contracts, with a supplementary provision of national law, but must in principle exclude the application thereof, 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.

Press release:  en