CELEX: 62004CJ0125
Questions referred for a preliminary ruling
Reference to the Court
National court or tribunal within the meaning of Article 234 EC
Arbitration panel

.This request for a preliminary ruling concerns the interpretation of Council Directive 90/314/EEC of 13 June 1990 on package
travel, package holidays and package tours (OJ 1990 L 158, p. 59, hereinafter ‘the directive’).
It was submitted in the context of a dispute between Mr Denuit and Ms Cordenier and Transorient – Mosaïque Voyages et Culture
SA, a travel agency (hereinafter ‘the agency’), concerning the price of a package trip to Egypt.
Legal background
Article 4(4)(a) of the directive provides:
‘The prices laid down in the contract shall not be subject to revision unless the contract expressly provides for the possibility
of upward or downward revision and states precisely how the revised price is to be calculated, and solely to allow for variations
in:
–
transportation costs, including the cost of fuel,
–
dues, taxes or fees chargeable for certain services, such as landing taxes or embarkation or disembarkation fees at ports
and airports,
–
the exchange rates applied to the particular package.’
The directive was transposed into Belgian law by the law of 16 February 1994 governing the travel-organisation contract and
the travel-agency contract (
Moniteur Belge
– Official Gazette, of 1 April 1994, p. 8928). Article 11(1) thereof corresponds to the aforementioned Article 4(4)(a) of
the directive and provides:
‘The price agreed in the contract shall not be subject to revision unless the contract expressly so provides and states precisely
how the revised price is to be calculated, and provided that revision is consequent upon variations in:
(a)

the exchange rates applied to the package, and/or
(b)

transportation costs, including the cost of fuel, and/or
(c)

dues, taxes or fees chargeable for certain services.
In such cases the variations mentioned shall also result in a price reduction.’
Dispute in the main proceedings and the questions referred
Mr Denuit and his wife, Ms Cordenier, who are the claimants in the main proceedings, reserved with the agency an all-inclusive
package to Egypt from 2 to 9 March 2003 for themselves and their child, Thierry, at a total price of EUR 2 765, comprising
air transport from Brussels and back as well as a Nile cruise.
In the agency’s special conditions it is stated that ‘the price of these services have been calculated on the basis of the
dollar rate in force on publication of this brochure (January 2002 – EUR 1 = USD 0.91). Any alteration in either direction
of more than 10% prior to departure will enable us to adjust our prices.’
After the holiday, the claimants in the main proceedings requested the agency to reimburse to them a part, namely EUR 217.61,
of the total price already paid by them, claiming that it ought to have been revised downwards in proportion to the dollar
amount calculated in respect of the services offered following a change in the exchange rate of that currency, which was exchanged
on the date of their departure at the rate of USD 1.08 to EUR 1.
The agency refused to reimburse the claimants in the main proceedings, relying in particular on Article 11(1) of the law of
16 February 1994.
The claimants in the main proceedings then brought the matter before the Collège d’arbitrage de la Commission de Litiges Voyages
(Arbitration Panel of the Travel Dispute Committee), a non-profit-making association governed by Belgian law.
Taking the view that the dispute before it necessitated an interpretation of Article 4(4) of the directive, the Collège d’arbitrage
de la Commission de Litiges Voyages decided to stay the proceedings and to refer the following questions to the Court for
a preliminary ruling:
‘(1)
Where a clause in a contract between a consumer and a [travel] organiser and/or retailer provides only for the possibility
of an upward price revision and states precisely how the revised price is to be calculated, solely to allow for variations
set down in an exhaustive list by Article 4(4) of Directive 90/314/EEC, must that article be interpreted as implicitly requiring
downward price revision according to the same method of calculation?
(2)
Where a clause in a contract between a consumer and an organiser and/or retailer provides for the possibility of both upward
and downward price revision without stating precisely how the revised price is to be calculated, and solely to allow for variations
set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as invalidating
the entire clause or as limiting that invalidity to upward price revision?
(3)
Where a clause in a contract between a consumer and an organiser and/or retailer gives only the organiser and/or retailer
the possibility of revising prices upwards or downwards, stating precisely how the revised price is to be calculated, solely
to allow for variations set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted
as rendering the whole clause void, or is its invalidity limited to upward price revision?
(4)
Where a clause in the contract between a consumer and an organiser and/or retailer gives both the travel organiser and/or
retailer and the consumer the possibility of benefiting from upward and downward price revision, and states precisely how
the revised price is to be calculated, solely to allow for variations set down in an exhaustive list by Article 4(4)(a) of
Directive 90/314/EEC, must that article be interpreted as requiring the travel organiser and/or retailer to revise the price
downwards if the consumer has not asked it to do so?’
Competence of the Court
As a preliminary issue it must be examined whether the abovementioned Collège d’arbitrage should be regarded as a court or
tribunal for the purposes of Article 234 EC.
In order to determine whether a body making a reference is a court or tribunal of a Member State for the purposes of Article
234 EC, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent,
whether its jurisdiction is compulsory, whether its procedure is
inter partes
, whether it applies rules of law and whether it is independent (see, in particular, Case C-54/96
Dorsch Consult
[1997] ECR I-4961, paragraph 23, and the case-law there cited, and Case C-516/99
Schmid
[2002] ECR I-4573, paragraph 34).
Under the Court’s case-law, an arbitration tribunal is not a ‘court or tribunal of a Member State’ within the meaning of Article
234 EC where the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the public
authorities of the Member State concerned are not involved in the decision to opt for arbitration nor required to intervene
of their own accord in the proceedings before the arbitrator (Case 102/81 ‘
Nordsee’ Deutsche Hochseefischerei
[1982] ECR 1095, paragraphs 10 to 12, and Case C-126/97
Eco Swiss
[1999] ECR I-3055, paragraph 34).
In the main proceedings it is apparent from the decision to refer the matter that submission of the matter to the arbitration
panel of the travel dispute committee stems from an arbitration agreement entered into between the parties.
Belgian legislation does not lay down recourse to this arbitration board as the sole means of resolving a dispute between
an individual and a travel agency. It is true that an ordinary court before which a dispute is brought to which an arbitration
agreement applies must decline jurisdiction under Article 1679(1) of the Belgian judicial code. None the less, jurisdiction
of the arbitration panel is not mandatory in the sense that, in the absence of an arbitration agreement entered into between
the parties, an individual may apply to the ordinary courts for resolution of the dispute.
Since in the main proceedings the parties are under no obligation, in law or in fact, to refer their disputes to arbitration
and the Belgian public authorities are not involved in the decision to opt for arbitration, the Collège d’arbitrage de la
Commission de Litiges Voyages cannot be regarded as a court or tribunal of a Member State for the purposes of Article 234
EC.
Accordingly, the Court is not competent to rule on questions referred to it by that body.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the Collège d’arbitrage
de la Commission de Litiges Voyages, the decision on costs is a matter for that body. Costs incurred in submitting observations
to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) rules as follows:
The Court is not competent to rule on questions referred to it by the Collège d’arbitrage de la Commission de Litiges Voyages.
[Signatures]
–
Language of the case: French.