Judgment;Summary — ECLI:EU:C:2020:199
Date: 2020-03-12
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-583/18 – 1 
Case C-583/18 
Request for a preliminary ruling 
Date lodged: 
20 September 2018 
Referring court or tribunal: 
Oberlandesgericht Frankfurt am Main (Germany) 
Date of the decision to refer: 
13 September 2018 
Applicant and Appellant: 
Verbraucherzentrale Berlin eV 
Defendant and Respondent: 
DB Vertrieb GmbH 
      
[...] 
OBERLANDESGERICHT FRANKFURT AM MAIN 
(Higher Regional Court, Frankfurt am Main) 
ORDER 
in the case of 
Verbraucherzentrale Berlin e. V., [...] Berlin, 
– applicant and appellant – 
[...] 
v 
EN 
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DB Vertrieb GmbH, [...] Frankfurt am Main, 
– defendant and respondent – 
[...] 
I. The proceedings are stayed. 
II. The following questions on the interpretation of EU law are referred to 
the Court of Justice of the European Union pursuant to Article 267 
TFEU: 
[Or. 2]  
(1) Is Article 2.(6) of Directive 2011/83/EU of the European Parliament 
and of the Council of 25 October 2011 on consumer rights to be 
interpreted to mean that it also covers contracts by means of which the 
trader is not directly obliged to supply a service, but rather the 
consumer acquires the right to receive a discount for services ordered 
in the future?  
If Question 1 is answered in the affirmative: 
(2) Is the exception for ‘contracts … for passenger transport services’ in 
Article 3(3)(k) of Directive 2011/83/EU of the European Parliament 
and of the Council of 25 October 2011 on consumer rights to be 
interpreted to mean that it also applies to situations in which the 
consumer does not directly receive a passenger transport service as 
consideration, but rather acquires the right to receive a discount for 
contracts for transport services to be concluded in the future?  
Grounds: 
1 Parties to the main proceedings 
2 The applicant is an association whose tasks, according to its statutes, include 
upholding consumer interests. It has standing to bring proceedings pursuant to 
Paragraph 3(1)(1) of the Unterlassungsklagengesetz (Law on injunctions; UKlaG). 
It is registered in the list of qualified entities pursuant to Paragraph 4 UKlaG, 
which is maintained by the Bundesamt für Justiz (Federal Office for Justice) in 
Bonn. [Or. 3] 
3 The defendant is responsible, within the group Deutsche Bahn AG, for the 
distribution of passenger rail transport services offered by DB Fernverkehr. 
4 Subject matter of the dispute in the main proceedings and relevant facts 
5 The request for a preliminary ruling under Article 267 of the Treaty on the 
Functioning of the European Union (TFEU) relates to the interpretation of 
VERBRAUCHERZENTRALE BERLIN 
 
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Directive 2011/83/EU of the European Parliament and of the Council of 
25 October 2011 on consumer rights. 
6 The request has been made in the context of a civil dispute between the parties, 
which has been brought before the referring court as the court of second instance. 
7 The defendant, acting as intermediary, offers the products ‘BahnCard 25’ [rail 
card 25] and ‘BahnCard 50’ [rail card 50], with which the customer can receive a 
certain price reduction on the rail tickets of DB Fernverkehr AG. The defendant 
offers the possibility of ordering the ‘BahnCard 25’ on the website www.bahn.de; 
however, ‘BahnCard’ products can also be purchased in fixed sales outlets. The 
ordering process on the defendant’s website does not contain information on the 
right of withdrawal in the case of distance selling. 
8 By the present action, the applicant seeks to have the defendant prohibited from 
offering consumers or arranging to offer consumers, in the course of trade, the 
possibility of ordering the ‘BahnCard 25’ on the internet without providing the 
consumers with information on the right of withdrawal and the standard 
withdrawal form before they submit their declaration of intention to enter into a 
contract. It considers it to be unfair that, contrary to its statutory obligations, the 
defendant does not provide information on the existence of a right of withdrawal 
and does not provide a standard withdrawal form when selling the BahnCard. 
[Or. 4] 
9 The court at first instance dismissed the action by judgment of 6 July 2017. As its 
reasoning, it stated that, although there was a consumer contract within the 
meaning of Paragraph 312 of the Bürgerliches Gesetzbuch (German Civil Code, 
‘the BGB’), the exclusion under Paragraph 312(2)(5) BGB or Article 3(3)(k) of 
Directive 2011/83/EU was applicable; it was a contract for ‘passenger transport 
services’. Although consumers merely purchased a right to acquire transport 
services at reduced prices during the validity period when they purchased the 
BahnCard 25, a person’s right to be transported had a synallagmatic relationship 
with the right to the consideration to be paid for that service. The BahnCard 25 
allowed the consumer to obtain the transport service at a more favourable price. It 
would therefore be illogical to separate the payment agreement from the passenger 
transport service. In accordance with its spirit and purpose, the exclusion therefore 
also covered contracts which, as in the case of the payment agreement, related to 
passenger transport and determined the amount of the ticket price. 
10 By its appeal, the applicant continues to pursue the application for an injunction 
that it brought at first instance. 
11 Relevant legislation 
12 Pursuant to Paragraph 3a of the Gesetz gegen den unlauteren Wettbewerb (Law 
against unfair competition; ‘the UWG’), a person is to be regarded as acting 
unfairly in the case where he infringes a statutory provision that is also intended to 
regulate market conduct in the interests of market participants and the 
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infringement is liable to have a significantly adverse effect on the interests of 
consumers, other market participants or competitors. 
13 Paragraph 312 BGB defines the scope of application for the provisions for 
consumer contracts applicable in Paragraph 312 et seq. BGB; this also relates to 
the obligation at issue under Paragraph 312d(2) BGB to provide information on 
the right of withdrawal or the existence thereof and the provision of a [Or. 5] 
standard withdrawal form. The rules under Paragraph 312 et seq. BGB serve to 
implement Directive 2011/83/EU on consumer rights, which is fully harmonising. 
14 Pursuant to Paragraph 312(1) BGB, these provisions are applicable to consumer 
contracts that relate to a service for consideration. In addition, Paragraph 312(2) 
BGB contains exclusions, including one in subparagraph 5 for ‘Verträge über die 
Beförderung von Personen’ [contracts for passenger transport services]. This 
serves to implement the exclusion set out in Article 3(3)(k) of the Directive, which 
contains an identically worded provision in the German language version. 
15 Grounds for the order for reference 
16 The success of the appeal hinges decisively on the answers of the Court of Justice 
of the European Union to the questions referred, which are set out in the operative 
part. 
17 (1)  Paragraph 312 BGB requires that the content of the contract is a ‘Leistung’ 
[service] supplied by the trade for consideration. In this context, the term 
‘Leistung’ covers a product, on the one hand, and services, on the other hand, 
whereby the term ‘services’ is not clearly defined, and, moreover, it is not 
intended to cover all other conceivable contractual subject matter virtually 
automatically. Accordingly, a contract on accession to an association or company 
does not normally contain any relevant services of the association or company, 
particular when it primarily concerns the non-material benefits of membership. 
The situation would be different if the purpose of the membership is to benefit 
from services in associations to which only members are entitled, or if capital 
investment purposes are the focus of the membership of a company. 
18 Owing to the requirement of interpretation in conformity with directives, the 
provisions of the Directive and the case-law of the Court of Justice of the [Or. 6] 
European Union must be taken into account here. In Directive 2011/83/EU, a 
distinction is made between sales contracts (Article 2.(5)) and service contracts 
(Article 2.(6)). 
19 The referring court is inclined to interpret the Directive to mean that the present 
case is covered by its scope of application: pursuant to Article 2.(6) of 
Directive 2011/83/EU, a ‘service contract’ is any contract other than a sales 
contract within the meaning of the Directive, under which the trader supplies or 
undertakes to supply a service to the consumer and the consumer pays or 
undertakes to pay the price thereof. The term ‘service’ must be interpreted in line 
with EU law. Services are to be considered to be ‘services’ within the meaning of 
VERBRAUCHERZENTRALE BERLIN 
 
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the first paragraph of Article 57 TFEU where they are normally provided for 
remuneration, in so far as they are not governed by the provisions relating to 
freedom of movement for goods, capital and persons. Pursuant to the second 
paragraph of Article 57 TFEU, services include, in particular, activities of an 
industrial character, of a commercial character, activities of craftsmen and 
activities of the professions. In this respect, account should be taken of the fact 
that, having regard to the spirit and purpose of the Directive, there is no clear 
reason to deny the protection of the Directive if a service is initially provided only 
indirectly in the form of an assurance or a right. Moreover, this is also supported 
by the wording, which also includes the mere ‘undertaking’ to provide a service in 
the scope of application. In the present case, the service consists in giving the 
consumer the right to use transport services at a discounted price in the future. 
If the Directive were to be interpreted differently, the term ‘service’ in 
Paragraph 312 BGB would have to be construed more narrowly, with the result 
that there would not be a service. 
In its judgment of 15 April 2010 in E. Friz GmbH v Carsten von der Heyden, Case 
C-215/08 (EU:C:2010:186) regarding Article 1(1) of Directive 85/577/EEC to 
protect the consumer in respect of contracts negotiated away from business 
premises, which was replaced by Directive [Or. 7] 2011/83/EU, the Court of 
Justice of the European Union ruled that a consumer’s entry into a closed-end real 
property fund established in the form of a partnership came within the scope of 
that directive and therefore found that a service was involved. This can be 
understood as an indication of a somewhat broader scope. 
20 (2)  Paragraph 312(2)(5) BGB excludes contracts ‘for passenger transport 
services’ from the scope of Paragraph 312 et seq. BGB. Existing in parallel to this 
is the identically worded provision in Article 3(3)(k) of the Directive. 
21 In recital 27, the Directive justifies the exception as follows: ‘Transport services 
cover passenger transport and transport of goods. Passenger transport should be 
excluded from the scope of this Directive as it is already subject to other Union 
legislation or, in the case of public transport and taxis, to regulation at national 
level.’ 
22 The BahnCard contract at issue does not directly oblige Deutsche Bahn to provide 
a transport service. Rather, it is a type of framework contract that obliges 
Deutsche Bahn to grant the purchaser a discount when a specific transport service 
is ordered [...]. Therefore, the contract is not directly aimed at providing a 
transport service. 
23 However, the referring court takes the view that it is subject to the exclusion. In 
the ‘easy-car’ decision [...] [judgment of 10 March 2005, C-336/03, 
EU:C:2005:150], the Court of Justice of the European Union gave a broad 
interpretation to the term ‘provision of transport services’ in Directive 97/7/EC on 
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distance contracts – which was replaced by Directive 2011/83/EU – and stated the 
following: [Or. 8]  
‘[paragraph 20] In that regard, it must be stated from the outset that neither 
the directive nor the documents relevant for its interpretation, such as the 
travaux préparatoires, provide clarification of the exact scope of the concept 
of “transport services” mentioned in Article 3(2) of the directive. Similarly, 
the general scheme of the directive shows only that its objective is to entitle 
consumers to extensive protection by conferring on them certain rights, 
including the right of withdrawal, and that Article 3(2) provides for an 
exemption from those rights in four closely related sectors of economic 
activity, including that of transport services. [paragraph 21] It is settled case-
law that the meaning and scope of terms for which Community law provides 
no definition must be determined by considering their usual meaning in 
everyday language, while also taking into account the context in which they 
occur and the purposes of the rules of which they are part (Case C-128/94, 
Hönig [judgment of 19 October 1995, EU:C:1995:341] ECR I-3389, 
paragraph 9, and Case C-164/98 P, DIR International Film and Others v 
Commission [judgment of 27 January 2001, EU:C:2000:48], paragraph 26). 
When those terms appear, as in the main proceedings, in a provision which 
constitutes a derogation from a principle or, more specifically, from 
Community rules for the protection of consumers, they must, in addition, be 
interpreted strictly (Case C-83/99, Commission v Spain [judgment of 
27 January 2001, EU:C:2001:31], paragraph 19, and Case C-481/99 
Heininger [judgment of 13 December 2001, EU:C:2001:684], 
paragraph 31). [paragraph 22] So far as the term “transport services” is 
concerned, it must be held that it represents, like each of the other categories 
of services listed, a sectoral exemption and that it therefore relates generally 
to services in the transport sector. [paragraph 23] When the provisions on 
the exemption at issue in the main proceedings were drafted the legislature 
did not opt for the term “contracts of carriage” commonly used in the legal 
systems of the Member States, which relates only to carriage of [Or. 9] 
passengers and goods performed by the carrier, but for the distinctly broader 
term “contracts for the provision of … transport… services”, which can 
cover all contracts governing services in the field of transport, including 
those involving an activity which does not include, as such, the carriage of 
the customer or his goods, but which is aimed at enabling the customer to 
perform that carriage. [paragraph 24] The wording of Article 3(2) of the 
directive thus demonstrates that the legislature intended to define the 
exemption laid down in that provision, not according to the type of contract, 
but in such a way that all contracts for the provision of services in the 
accommodation, transport, catering and leisure sectors come within the 
scope of that exemption, with the exception of those the performance of 
which is not due on a specific date or within a specific period. 
[paragraph 25] That interpretation is expressly supported by several 
language versions of Article 3(2) of the directive, namely the German, 
Italian and Swedish versions, which mention, respectively, 
VERBRAUCHERZENTRALE BERLIN 
 
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“Dienstleistungen in den Bereichen … Beförderung” (“services in the 
transport sector”), “servizi relativi … ai trasporti” (“services relating to 
transport”) and “tjänster som avser … transport” (“services which concern 
transport”). [paragraph 26] In everyday language, “transport” refers not only 
to the action of moving persons or goods from one place to another, but also 
to the mode of transport and to the means used to move those persons and 
goods. Making a means of transport available to the consumer is thus one of 
the services involved in the transport sector. [paragraph 27] Consequently, 
without exceeding the strict scope of the sectoral exemption relating to 
“transport services”, provided for in Article 3(2) of the directive, it must be 
held that that exemption [Or. 10] covers car hire services, the essential 
nature of which is precisely the making available to the consumer of a 
means of transport. [paragraph 28] In addition, so far as concerns the context 
in which the concept of ‘transport services’ is used and the objectives 
pursued by the directive, it is established, as the Advocate General noted in 
points 39 to 41 of her Opinion, that the intention of the legislature was to 
institute protection for the interests of consumers who use means of distance 
communication, but also protection for the interests of suppliers of certain 
services, in order that the latter should not suffer the disproportionate 
consequences arising from the cancellation at no expense and with no 
explanation of services which have given rise to a booking. In that regard, 
easyCar rightly maintains, without, moreover, being contradicted on this 
point either by the governments which submitted observations to the Court 
or by the Commission, that Article 3(2) of the directive is aimed at 
exempting suppliers of services in certain sectors on the ground that the 
requirements of the directive could affect those suppliers disproportionately, 
in particular where a service has given rise to a booking and that booking is 
cancelled by the consumer at short notice before the date specified for the 
provision of that service.’ 
24 Directive 97/7/EC has been replaced by Directive 2011/83/EU on consumer 
rights. The term ‘Dienstleistungen in dem Bereich Beförderung’ [transport 
services] was replaced by ‘Verträge über die Beförderung von Personen’ 
[contracts for passenger transport services] in the new directive. The amendment 
gives the exclusion a narrower wording. However, the referring court takes the 
view that it does not entail a restriction, meaning that cases of the kind at issue, in 
which a transport service is not being provided directly, are covered. There are no 
clear indications that the legislature intended to restrict the [Or. 11] exclusion. In 
recital 27, the Directive specifies that, by contrast with the older directive, the 
exclusion should apply to only passenger transport, but not to the transport of 
goods. There are no clear indications that the amendment of the wording was 
intended to entail a deliberate restriction (and thus a clear departure from the case-
law of the Court of Justice of the European Union also). From a teleological point 
of view also, there are many indications that the ordering of a Bahn Card should 
be regarded as being covered by the exclusion. The Bahn Card conditions are 
included in the ‘Tarifverzeichnis’ [tariff index] and, as part of the general terms 
and conditions of transport pursuant to the first sentence of Paragraph 12(2) of the 
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Allgemeines Eisenbahngesetz (General law on the railways; ‘the AEG’), are 
reviewed by the supervisory authorities. Therefore, a central motivation of the 
national and European legislature has also been fulfilled in the present case. This 
is because recital 27 of the Directive specifies that passenger transport should be 
excluded from the scope of the Directive as – in the case of public transport – it is 
already subject to regulation at national level. 
25 The questions referred 
26 The referring court therefore requests that the following questions be answered:  
(1) Is Article 2.(6) of Directive 2011/83/EU of the European Parliament and of 
the Council of 25 October 2011 on consumer rights to be interpreted to 
mean that it also covers contracts by means of which the trader is not 
directly obliged to supply a service, but rather the consumer acquires the 
right to receive a discount for services ordered in the future?  
If Question 1 is answered in the affirmative: 
(2) Is the exception for ‘contracts … for passenger transport services’ in 
Article 3(3)(k) of Directive 2011/83/EU of the European [Or. 12] 
Parliament and of the Council of 25 October 2011 on consumer rights to be 
interpreted to mean that it also applies to situations in which the consumer 
does not directly receive a passenger transport service as consideration, but 
rather acquires the right to receive a discount for contracts for transport 
services to be concluded in the future? 
[...]