Rechtsleer

Unfair Contract Terms Directive, Article 1, 2.

“De richtlijn oneerlijke bedingen is nu ook de NMBS op het spoor”.

This case note discusses the Kanyeba judgement of the CJEU (Joined Cases C-349/18 to C-351/18), where the Court ruled that rail passengers who board trains for the purpose of travelling without acquiring a ticket have concluded a ‘transport contract’ within the meaning of Article 3(8) of Regulation (EC) No 1371/2007 on rail travellers. The CJEU also confirmed that Article 6(1) UCTD precludes that national judges can moderate unfair penalty terms applied to these passengers without tickets or replace such terms with a supplementary provision of national law, except when this would be necessary to continue the existence of the contract in order to avoid particularly unfavourable conditions for the consumer. The author points out that the Kanyeba judgement differs from the AG’s opinion, but also comes from earlier case law where the CJEU hesitated to classify travellers without a valid ticket under regulatory provisions instead of a contractual relationship (see NMBS/Demey, Case C-261/15). According to the author, the Court’s clarification in the Kanyeba judgement will only have limited implications for Belgian court practice since regulatory provisions also fall within the scope of the national legislation implementing the UCTD. Therefore, the judgement is of particular interest for Member States where this is not the case.