Dear readers,
last week the Court of Justice rendered a
decision of some consequence in the field of unfair terms - which was to an
extent unexpected in light of the somewhat less conclusive AG Opinion published
before the summer.
In Kanyeba, the CJEU had to decide on the
applicability of Directive 93/13 to the legal relationship between a passenger
who had boarded a train without paying a ticket and the railway operator: was
this a matter of contract law or, given the fact that the consumer was
seemingly not intending to pay the price, a matter or administrative
regulations? Under Belgian law, authoritative court decisions had clarified
that unfair terms control should apply in either scenario. The referring court,
however, seemed to disagree: whether the Directive applies, it reasoned, is a
matter of EU law and should thus be clarified by the Court of Justice.
The Court's answer suggests that the Directive
does, in principle, apply. This descends from the fact that, according to the
Court, Regulation No 1371/2007,
which defines certain essential rights of passengers of train transport
services, must be interpreted to mean that a contract to transport under the
Regulation (and hence, it seems, for purposes of consumer protection) is
concluded as soon as a passenger boards a train with the intention to travel -
irrespective of whether they have a ticket or whether they intend to purchase
one. This conclusion, according to the CJEU, is warranted both by the wording
and context of article 3(8) of the Regulation and by the consumer protection
goals. The latter would be undermined, the court says, if consumers were
exposed to losing all protection as soon as they boarded a train with no
ticket.
The finding may not mean much in the case at stake
as the Court observes that the terms and conditions featuring the terms under
consideration in Kanyeba - some very steep penalties for failing to buy a
ticket in time or pay an extra charge - may quite possibly be exempted from
unfair terms control under article 1 of the UCTD, which safeguards national
statutory or regulatory provisions if they are applicable irrespective of the
parties' will.
Of probably broader interest - if in itself not
incredibly surprising - is the answer given in this case to a further question
raised by the referring court: if the penalties were to be found unfair, would
the court be allowed to "replace" them by means of general tort law?
The Court's answer comes in two instalments,
which I think must be separately considered:
1) in para 74 the Court reiterates that the
Directive precludes "that a national court replace that term, in
accordance with the principles of its contract law, with a supplementary
provision of national law"; however, a little above the Court reasons that
2) the question whether circumstances such
as those at issue in the main proceedings are, moreover, capable of falling
within the ambit of the law governing non-contractual liability does not come
within the scope of Directive 93/13, but of national law.
The Directive, the Court says, does not seek to
harmonise non-contractual liability. Hence, we seem to understand, it does not
pre-empt claims in torts by the seller concerning the same circumstances which
the penalty clause would have applied to.
This conclusion makes very good sense and could
help clarify some questions that scholars in various Member States have been
grappling with in the past few years. In particular, I think it is safe to read
two implications into this decision:
a) a national court cannot decide, so to say ex
officio, to grant damages on the basis of general rules to a party who was
seeking to enforce an unfair term;
b) however, the Directive does not preclude
awarding of damages when the claimant makes a relevant submission and fulfils
all the conditions for granting such a claim as established by
national legislation.
While the comparative lawyer in me would have
loved it for the Court to engage in a more general analysis on the notion of
contract under the UCTD, I think this is a very balanced decision which deals
well with a number of relevant issues without excessively muddling the waters
or hiding away.
