# C_2020010EN.01001201.xml

| 13.1.2020 | EN | Official Journal of the European Union | C 10/12 |
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13.1.2020

EN

Official Journal of the European Union

C 10/12

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Judgment of the Court (Fifth Chamber) of 7 November 2019 (requests for a preliminary ruling from the Vredegerecht te Antwerpen — Belgium) — Nationale Maatschappij der Belgische Spoorwegen (NMBS) v Mbutuku Kanyeba (C-349/18), Larissa Nijs (C-350/18), Jean-Louis Anita Dedroog (C-351/18)

(Joined Cases C-349/18 to C-351/18) (1)

(References for a preliminary ruling - Rail transport - Passengers’ rights and obligations - Regulation (EC) No 1371/2007 - Article 3(8) - Transport contract - Concept - Passenger without a ticket at the time of boarding a train - Unfair terms in consumer contracts - Directive 93/13/EEC - Article 1(2) and Article 6(1) - General conditions of carriage of a railway undertaking - Mandatory statutory or regulatory provisions - Penalty clause - Powers of the national court)

(2020/C 10/14)

Language of the case: Dutch

Referring court

Vredegerecht te Antwerpen

Parties to the main proceedings

Applicant: Nationale Maatschappij der Belgische Spoorwegen (NMBS)

Defendants: Mbutuku Kanyeba (C-349/18), Larissa Nijs (C-350/18), Jean-Louis Anita Dedroog (C-351/18)

Operative part of the judgment

| 1. | Article 3(8) of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations must be interpreted as meaning that a situation in which a passenger boards a freely accessible train for the purposes of travel without acquiring a ticket comes within the concept of a ‘transport contract’ for the purposes of that provision; |
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1.

Article 3(8) of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations must be interpreted as meaning that a situation in which a passenger boards a freely accessible train for the purposes of travel without acquiring a ticket comes within the concept of a ‘transport contract’ for the purposes of that provision;

| 2. | Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding, firstly, that a national court which establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair moderate the amount of the penalty imposed on the consumer and, secondly, that a national court replace that term, in accordance with the principles of its contract law, with a supplementary provision of national law, 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. |
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2.

Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding, firstly, that a national court which establishes that a penalty clause in a contract concluded between a seller or supplier and a consumer is unfair moderate the amount of the penalty imposed on the consumer and, secondly, that a national court replace that term, in accordance with the principles of its contract law, with a supplementary provision of national law, 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.

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(1)  OJ C 294, 20.8.2018.

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