Case C‑583/18
(available in French here)
deals with the Consumer Rights Directive, particularly with its scope of
application and the exclusion of contracts for the transportation of
passengers. The case originated in a dispute between the Verbraucherzentrale,
the German consumer association, and DB Vertrieb GmbH, a company in the group
of the railway company Deutsche Bahn. In this context, DB Vertrieb sells cards
that allow passengers to have discounts on the price of their train tickets –
either 25% (BahnCard25) or 50% (BahnCard50). These cards are sold online but no
information about the right of withdrawal is given to consumers. DB Vertrieb
GmbH argues that this omission is justified by the fact that there is no right
of withdrawal in these ‘discount cards’ contracts, since they are excluded from
the scope of application of the Consumer Rights Directive. Indeed, the Consumer
Rights Directive excludes contracts for passenger transport services from its scope
(Article 3(3)(k)). Consequently, the referring Court asked the CJEU whether the
contract concluded between consumers and Deutsche Bahn can be considered a
service contract under Article 2(6) of the Consumer Rights Directive and, if
so, whether it can also be considered a contract for passenger transport service
under Article 3(3)(k) in such a way that it would be excluded from the scope of
the Directive.
The CJEU answered
the first question in a straightforward and broad manner, in line with the
broad definition of ‘service contract’ in the Consumer Rights Directive. The
CJEU highlighted that Article 2(6) states that a service contract is ‘any
contract other than a sales contract’ and, given that the contract in question
does not involve the transfer of ownership of a good (Article 2(5)), it is not
a sales contract. Not being a sales contract, it is a service contract. ‘Discount
contracts’ are, therefore, considered service contracts under the
Consumer Rights Directive.
Regarding the
second question, the CJEU considered that a contract through which the consumer
enjoys a price discount if and when concluding a future transportation contract
is not a contract for passenger transport services as defined by Article
3(3)(k), since the contract in question does not have as a primary object the
transportation of passengers.
Furthermore, the
CJEU argued that the two contracts in question – the ‘discount card’ contract
and the actual passenger transportation contract – are two different contracts,
not legally connected to each other. In other words, the conclusion of the
contract which gives the consumer a price discount in a future transportation
contract does not mean that the consumer will necessarily conclude the transportation
contract.
Finally, the
CJEU considered that the existence of a right of withdrawal in the ‘discount
card’ contract does not create any objective inconvenient for the
transportation company. The CJEU based this argument on the rationale behind
the exclusion of contracts for the transportation of passengers from the Consumer
Rights Directive, explained in Recital 49. Recital 49 states that it would be
inappropriate to give consumers the right to withdraw from service contracts where
the conclusion of the contract leads the professional party to set aside the corresponding
capacity which could not be filled or would be difficult to fill in case of withdrawal.
In this case, the acquisition of ‘discount cards’ by consumers does not mean
that Deutsche Bahn will alter its capacity (e.g. available seats on trains).
Therefore, Article
3(3)(k) must be interpreted as not including ‘discount cards’ contracts,
which means that, in practice, the contract in question is covered by the
Directive and by its provisions regarding the right of withdrawal.
