62018CC0349
OPINION OF ADVOCATE GENERAL
PITRUZZELLA
delivered on 11 June 2019 (
1
)
Joined Cases C‑349/18 to C‑351/18
Nationale Maatschappij der Belgische Spoorwegen (NMBS)
v
Mbutuku Kanyeba (C‑349/18)
Larissa Nijs (C‑350/18)
Jean-Louis Anita Dedroog (C‑351/18)
(Request for a preliminary ruling from the Vredegerecht te Antwerpen (Magistrates’ Court, Antwerp, Belgium))
(Reference for a preliminary ruling — Rail transport — Passengers’ rights and obligations — Regulation (EC) No 1371/2007 — Article 9(4) — Passenger without a ticket — Failure to remedy a situation — Nature of the legal relationship — Unfair terms in consumer contracts — Directive 93/13/EEC — Articles 2, 3 and 6(1) — Scope — General conditions of carriage — Surcharge applicable to passengers who do not have a ticket)
1.
Does the legal relationship between an individual who decides to take a train without purchasing a ticket, and not to remedy his situation following checks, constitute a contract under EU law? In any event, can the rules on unfair terms be applied to that relationship, with the result that the terms governing the surcharge demanded by the transport company for failure to purchase a ticket may be deemed by the court not to be binding on the consumer/passenger?
2.
Those are essentially the issues in the present case, which arises from a reference from the Vredegerecht te Antwerpen (Magistrates’ Court, Antwerp, Belgium) in proceedings in which a Belgian railway company demands from passengers found without a ticket payment of what is laid down in the general conditions of carriage for the case where the passenger having no ticket has refused to pay the fare, with the increases provided for in the event of subsequent failure to remedy the situation.
I. Legal Framework
A.
European Union Law
3.
The 12th recital of Directive 93/13/EEC (
2
) states that:
‘…
Whereas, however, as they now stand, national laws allow only partial harmonisation to be envisaged; whereas, in particular, only contractual terms which have not been individually negotiated are covered by this Directive; whereas Member States should have the option, with due regard for the Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive.’
4.
Article 1 of Directive 93/13 provides:
‘1.   The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.
2.   The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’
5.
Article 3 provides that:
‘1.   A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.
2.   A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of that term, particularly in the context of a pre-formulated standard contract.
The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of the contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.
Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.
3.   The Annex shall contain an indicative and non-exhaustive list of the terms which may be regarded as unfair.’
6.
Article 6(1) provides that:
‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
7.
Article 8 of Directive 93/13 provides that:
‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’
8.
Article 4 of Regulation (EC) No 1371/2007 (
3
) provides that:
‘Subject to the provisions of this Chapter, the conclusion and performance of a transport contract and the provision of information and tickets shall be governed by the provisions of Title II and Title III of Annex I.’
9.
Article 9(4) of Regulation No 1371/2007 provides that:
‘Railway undertakings shall offer the possibility to obtain tickets for the respective service on board the train, unless this is limited or denied on grounds relating to security or antifraud policy or compulsory train reservation or reasonable commercial grounds.’
10.
Under Article 6, Title II, of Annex I ‘Extract from Uniform Rules concerning the contract for international carriage of passengers and luggage by rail (CIV)’ to Regulation No 1371/2007:
‘1.   By the contract of carriage the transport company shall undertake to carry the passenger as well as, where appropriate, luggage and vehicles to the place of destination and to deliver the luggage and vehicles at the place of destination.
2.   The contract of carriage must be confirmed by one or more tickets issued to the passenger. However, subject to Article 9, the absence, irregularity or loss of the ticket shall not affect the existence or validity of the contract, which shall remain subject to these Uniform Rules.
3.   The ticket shall be prima facie evidence of the conclusion and the contents of the contract of carriage.’
11.
Under Article 9, Title II, of Annex I to Regulation No 1371/2007:
‘1.   The passenger must, from the start of his journey, be in possession of a valid ticket and produce it on the inspection of tickets. The General Conditions of Carriage may provide:
(a)
that a passenger who does not produce a valid ticket must pay, in addition to the carriage charge, a surcharge;
(b)
that a passenger who refuses to pay the carriage charge or the surcharge upon demand may be required to discontinue his journey;
(c)
if and under what conditions a refund of the surcharge shall be made.’
B.
Belgian law
12.
Article I.8.39 of the Wetboek van Economisch Recht (Code of Economic Law) (
4
) provides the following definition of ‘undertaking’:
‘undertaking: natural or legal person who pursues an economic aim on a continuing basis, including associations thereof.’
13.
Article VI.83, 24 of the Code of Economic Law provides:
‘In contracts concluded between an undertaking and a consumer, terms and conditions or combinations of terms and conditions shall in any event be considered unlawful if they seek:
…
24° to fix the amount of compensation and interest in the event of non-performance or delay in the performance of the obligations of the consumer, which are clearly not proportionate to the damage which could be incurred by the company.’
14.
Article VI.84, 1 of the Code of Economic Law provides that:
‘All unfair terms shall be prohibited and null and void. The contract shall remain binding on the parties if it can survive without the unfair clauses. Consumers may not waive the rights conferred on them by this section.’
15.
Article 2 of the General and Special Conditions of Carriage of the Nationale Maastschappij van de Belgische Spoorwegen (National Railway Company of Belgium; ‘NMBS’) (Algemene en bijzondere vervoersvoorwaarden van de Nationale Maatschappij van de Belgische Spoorwegen), headed ‘Agreement to the general and special conditions of carriage for the passenger’, states:
‘By using the transport services of NMBS, you acknowledge that you have taken note of this document and the Special Conditions (which are available on our website snbc.be) and agree to comply with them without reservation. This document could be changed at any time by NMBS on legitimate grounds such as, inter alia, obligations connected with public service tasks, compliance with decisions adopted by public authorities and operational needs connected with infrastructure, the network or resources. NMBS will take steps to keep you informed of any changes to these General Conditions of Carriage through NMBS channels (in particular on the website snbc.be) and through the Moniteur Belge. Those changes shall be binding on publication.’
16.
Article 4(3) of the General and Specific Conditions of Carriage provides that:
‘The establishment of the irregularity resulting from failure to fulfil obligations connected with the ticket shall lead to the application of the measures set out in Annex I — Irregularity and antisocial conduct shall under no circumstances establish a transport contract. Consequently, you have no right to claim any compensation or reparation.’
17.
Article 5.4 of the General and Special Conditions of Carriage, headed ‘The purchase of a ticket at the “on-board rate”’ provides that:
‘1.   Other in the cases set out in paragraph 1 of Annex I — irregularities and antisocial behaviour, in respect of which the establishment of an irregularity is recorded immediately, the inspector will offer you an opportunity to purchase a ticket from the range of products sold on the train at the “on-board rate” in the following cases:
(a)
you are unable to produce, for whatever reason, a ticket to the inspector;
…
3.   The “on-board rate” consists of the fare increased by a surcharge, the amount of which is laid down in the Special Conditions of Carriage. It shall form part of the fare.’
18.
Paragraph 2.1.2 of Annex I to the Special Conditions of Carriage headed ‘Finding of a “medium” irregularity’ provides that:
‘The establishment of a “medium” irregularity shall be recorded if the passenger is in one of the situations set out in Article 5.4 of the General Conditions of Carriage and refuses to purchase a ticket at the “on-board rate”.’
19.
Paragraph 4 of the Special Conditions of Carriage lays down as follows the amount of the surcharge in the event of a ticket irregularity:
‘Flat-rate amount (6% VAT included)
– Finding of ticket irregularity.
Payment made within 14 calendar days (including the day of the act): EUR 75.00.
Failure to pay within 14 calendar days (including the day of the act): EUR 225.00.’
II. The facts, the main proceedings and the questions referred for a preliminary ruling
20.
These proceedings arise out of three cases pending before the Vredegerecht te Antwerpen (Magistrates’ Court, Antwerp, Belgium) in respect of which identical questions were referred to the Court for a preliminary ruling.
21.
In the course of 2015, the Nationale Maatschappij van de Belgische Spoorwegen (National Railway Company of Belgium) established on four occasions an infringement of the conditions of carriage by Mr Kanyeba, who travelled by train without paying the required fare. On none of the four occasions did Mr Kanyeb avail himself of the opportunity offered to him by NMBS to ‘remedy that situation’ by purchasing a ticket on the train with a surcharge of EUR 7.50, or, alternatively, by paying a surcharge of EUR 75 within 14 days of the establishment of the infringement, or by paying EUR 225 after a period of 14 days following such establishment.
22.
In the course of 2013 and 2015 the same infringement was established in respect of Mrs Nijs, on five occasions and, in the course of 2014 and 2015, in respect of Mr Dedroog, on 11 occasions.
23.
NMBS offered each of them the possibility of remedying the situation within the time limits referred to in paragraph 21. However, none of them availed themselves of that possibility.
24.
Therefore, NMBS brought action claiming that Mr Kanyeba should be ordered to pay EUR 880.20, Mrs Nijs EUR 1 103.90, and Mr Dedroog EUR 2 394.00. In the main proceedings the applicant claims that the nature of the relationship between it and the three persons concerned is administrative and not contractual since they did not purchase a ticket.
25.
The referring court considers that, according to case-law of the Court of Justice, it is required to examine of its own motion the application of the rules on unfair terms whenever the service is supplied to a consumer, as in the present case. In this context the question is, on the one hand, what is the nature of the legal relationship between NMBS and consumers and, on the other, can the contract be said to have been concluded despite the fact that the latter travelled without purchasing a ticket.
26.
In particular, the referring court observes that the legal basis for the NMBS general conditions of carriage is not clear. One argument is that the general conditions which lay down the rights and obligations of the parties are purely contractual terms. Another is that those conditions constitute regulations within the meaning of administrative law.
27.
In addition, the referring court reports of a debate among legal commentators in Belgium over the nature of the legal relationship between NMBS and passengers. Some consider that the relationship is contractual in nature — even where the passenger does not purchase a ticket — since the very fact of entering the area where it is necessary to possess a valid ticket constitutes the conclusion of a pre-formulated standard transport contract. On the other hand, there are those who argue that the relationship is contractual in nature only where the passenger purchases a ticket, otherwise it must be deemed to be a regulatory relationship.
28.
Finally, the referring court recalls that the Grondwettelijk Hof (Constitutional Court, Belgium) and the Hof van Cassatie (Court of Cassation, Belgium) have made it clear that the ‘doctrine of unfair terms’ in Belgian law is also applicable to regulatory legal relationships.
29.
In those circumstances the Vredegerecht te Antwerpen (Magistrates’ Court, Antwerp) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must Article 9(4) of [Regulation No 1371/2007], read in conjunction with Article 2(a) and Article 3 of Directive 93/13, be interpreted as meaning that a contractual legal relationship is always created between the transport company and the passenger, even when the latter makes use of the services provided by the transport company without purchasing a ticket?
(2)
If the answer to the previous question is in the negative, does the protection offered by the doctrine of unfair terms also extend to a passenger who makes use of public transport without having acquired a ticket and who, by that action, under the general terms and conditions of the transport company, which are considered to be generally binding on the basis of their regulatory nature or, alternatively, by virtue of their publication in an official State publication, is obliged to pay a surcharge in addition to the fare?
(3)
Does Article 6 of Directive 93/13 on unfair terms in consumer contracts, which provides that “Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms”, preclude a court in all cases from moderating the term deemed to be unfair or from applying ordinary law instead?
(4)
If the answer to the previous question is in the negative, what then are the circumstances in which a national court may proceed to moderate the term found to be unfair or to replace it by the ordinary law?
(5)
If the aforementioned questions cannot be answered in abstracto, the question then arises as to whether, if the national railway company, having apprehended a fare-dodger, imposes a civil penalty in the form of a surcharge, whether or not in addition to the fare, and the court were to find that the surcharge imposed is unfair within the meaning of Article 2(a), read in conjunction with Article 3, of Directive 93/13, Article 6 of Directive 93/13 precludes the court from declaring the term void and applying ordinary liability law to compensate the national railway company for the damage suffered.’
III. Legal analysis
30.
As requested by the Court, this Opinion will concentrate on analysing the second question, which, however, given the close connection, I will address together with the first question. The third to fifth questions will be examined jointly and in relation to them I will merely make brief observations on the settled case-law of the Court.
1.
First and second questions
(a) Preliminary remarks
31.
In the first and second questions the referring court essentially asks the Court of Justice whether it may be inferred from Regulation No 1371/2007 on rail passengers’ rights and obligations and Directive 93/13 on unfair terms that a contractual legal relationship is always created between the transport company and the passenger, even when the latter makes use of the services provided by the transport company without purchasing a ticket. If the answer is in the negative, can the rules on unfair terms contained in Directive 93/13 be applied in any event to such cases so that any term requiring a passenger without a valid ticket to pay a surcharge can be declared unfair by a court and thus not binding on the consumer.
32.
In setting out the following considerations it is necessary to make two preliminary observations.
33.
Firstly, Regulation No 1371/2007 and Directive 93/13 provide no indication as to the legal nature of the relationship between the consumer who boards a train and the transport undertaking.
34.
Article 4 of Regulation No 1371/2007 provides that: ‘Subject to the provisions of this Chapter, the conclusion and performance of a transport contract and the provision of information and tickets shall be governed by the provisions of Title II and Title III of Annex I.’
35.
Article 6, Title II, of Annex I to Regulation No 1371/2007 merely states, in paragraph 2, that: ‘The contract of carriage must be confirmed by one or more tickets issued to the passenger. However, subject to Article 9, the absence, irregularity or loss of the ticket shall not affect the existence or validity of the contract’.
36.
Article 9, Title II, of Annex I to Regulation No 1371/2007 makes it clear that ‘1. The passenger must, from the start of his journey, be in possession of a valid ticket and produce it on the inspection of tickets. The General Conditions of Carriage may provide: (a) that a passenger who does not produce a valid ticket must pay, in addition to the carriage charge, a surcharge; (b) that a passenger who refuses to pay the carriage charge or the surcharge upon demand may be required to discontinue his journey.’
37.
Therefore, those provisions, as has been clearly stated by the Court, simply presuppose the existence of a contract of carriage concluded beforehand. (
5
)
38.
Directive 93/13 contains no reference to the concept of contract or the time at which it is formed and merely presupposes the existence of a contractual agreement for the application of the rules on unfair terms. (
6
)
39.
Therefore, none of the provisions of EU law cited by the referring court defines when a legal relationship may be classified as a contract of carriage or the time at which a contract of carriage can be deemed to be concluded.
40.
Thus, it is entirely within the discretion of the Member States to classify the nature of the legal relationship which is created in the situations described above. (
7
)
41.
Consequently, EU law does not preclude the existence of national provisions which provide that a person who travels by train without being in possession of a valid ticket, and who does not remedy his situation following checks, is not bound by a contract with the rail undertaking. (
8
)
42.
I therefore consider that Article 9(4) of Regulation No 1371/2007 and Article 2(a) and Article 3 of Directive 93/13 cannot be interpreted as meaning that a contractual legal relationship is always created between the transport company and the passenger.
43.
It will therefore be for the national court to ascertain, in the light of domestic law, whether or not a contractual relationship exists.
44.
The second preliminary observation is that the conduct described is antisocial behaviour which, in various national laws, can be classified legally as a mere breach of a contract, as an administrative offence or even as a criminal offence, (
9
) on account of the interests, including public interests, involved in the carriage of passengers.
45.
Here we have a case, from what we can gather from the file, where a passenger boards a train, deliberately not holding a ticket and with no intention of fulfilling his obligation to pay the price of a service which he is using, even when faced with the various opportunities which the service provider offers him during or after enjoyment of that service.
(b) The application of the rules on unfair terms to the case of a passenger without a ticket
46.
On the basis of the preliminary observations made above, the referring court essentially asks the Court of Justice, as regards the substance of the second question, whether the rules on unfair terms contained in Directive 93/13 can apply also where a passenger boards a train without a ticket and, after having refused to remedy his situation on several occasions in accordance with the general conditions of carriage of the rail undertaking, has a judicial claim made against him by that undertaking for payment of the ticket and a surcharge.
47.
The general conditions of carriage of the rail undertaking are the legal basis for payment of a surcharge in the event of failure to possess a valid travel ticket (and the subsequent failure to remedy the situation in the face of repeated and constant requests).
48.
The referring court considers that those general conditions are applicable to all passengers on account of their regulatory nature or their publication in an official publication.
49.
However, it cannot be ruled out in principle that the relationship is contractual in nature. (
10
)
50.
As I have said, it will be for the national court to ascertain whether or not the legal relationship between a transport company and a consumer without a ticket is contractual in nature.
51.
Whilst it is true that it is for the national courts to classify the legal situation described, on the basis of national law in the absence of references to the time of the contract’s formation in the sources of EU law cited above, it is equally true — as also observed by the Commission in the written observations in the file — (
11
) that the element common to the laws of the Member States, for the purposes of classifying a legal relationship as contractual, is the existence of a declaration of reciprocal intent.
52.
In a case such as that described above there could well be doubts as to the existence of a declaration of reciprocal intent. The passenger not only decides not to purchase a ticket available to the public, but even when faced with another contractual offer on board the train, refuses to declare his intent to buy a ticket.
53.
Therefore, there can be doubts that, where there is unlawful conduct such as that described above, there may be an appropriate exchange of reciprocal intent which could constitute a contract. The passenger did not declare his agreement to an essential element of the contract, that is to say the price of the service and the payment thereof.
54.
If the relationship between the undertaking and the consumer who refused to pay for a ticket were to be regarded as being contractual in nature, the rules on unfair terms would have to apply. However, under Article 1(2) of Directive 93/13, contractual terms which reflect mandatory regulatory provisions are not to be subject to the provisions of that directive.
55.
If the general conditions of carriage in national law are classified as being regulatory in nature, the abovementioned Article 1(2) would have to apply with the consequent exclusion of the rules on unfair terms.
56.
On the other hand, if the general conditions of carriage containing the term, which requires payment of a surcharge in the event of failure to purchase a ticket, must be classified as being contractual in nature and Article 1(2) of Directive 93/13 does not apply, that term could be assessed in the light of the rules on unfair terms.
57.
However, in the specific case of Belgian law the Commission notes, in its written observations, that the Kingdom of Belgium has not transposed Article 1(2) of Directive 93/13 into its national law, availing itself of the power provided for in Article 8 of that directive. (
12
)
58.
If this were the situation which actually exists in Belgian law and if it were considered that the Article 1(2) of Directive 93/13 is not directly applicable in the law the Member States, the court would in any event have to assess whether or not the term is unfair.
59.
In the opposite case where, in national law, the relationship between the transport undertaking and the consumer who has refused to pay for a ticket is not contractual in nature, the situation is outside the scope of EU law.
60.
Article 1(1) of Directive 93/13 clearly limits the scope thereof to contracts concluded between a seller or supplier and a consumer.
61.
However, in the order for reference to the Court, which is not particularly clear in this respect, the referring court observes that in Belgian law the case-law of the Constitutional Court and the Court of Cassation have extended the ‘doctrine of unfair terms’ to a ‘regulatory legal relationship’. (
13
)
62.
If in Belgian law the protection against unfair terms is extended to all relationships between a consumer and a seller or supplier, also of a regulatory nature — which it is for the national court alone to determine — the term requiring a consumer who refuses to pay for a ticket to pay the surcharge should be assessed in the light of the rules on unfair terms.
63.
In any event, however, beyond the above considerations relating to antisocial nature of the consumer’s behaviour, it should be borne in mind that here we have a quite particular situation where private and public interests intersect: the performance of a passenger transport service; the ‘punitive’ nature of the surcharge in the event of repeated refusal to pay for a ticket which at the same time has the function of discouraging such unlawful conduct and compensating the undertaking for the administrative costs incurred in attempting to recover the sums owed; and the conduct of a person who consciously refuses to pay the price of the service which he is using, thus breaching the obligation to acquire an appropriate ticket beforehand and subsequently refusing to remedy the defect by paying on board the train.
64.
As regards the ways in which the national court can assess the unfair nature of the term, the court must give due regard to the context set out above in establishing whether or not the cited term causes a significant imbalance in the parties’ rights and obligations, as required by Article 3(1) of Directive 93/13.
65.
In this regard, it would appear legitimate to doubt the existence of a significant imbalance in rights and obligations, which is required for a finding of unfairness, where the individual terms, although conferring advantages on the party drawing them up, are dictated by justified organisational and managerial needs of the undertaking, without which it would be unable to carry on its activities efficiently and profitably.
2.
Third, fourth and fifth questions
66.
By the third, fourth and fifth questions the referring court essentially asks about the scope of the obligation on the national court to declare null and void a term which it considers to be unfair and whether Article 6(1) of Directive 93/13 must be interpreted as prohibiting the national court from moderating a term which provides for a surcharge for passengers without a ticket, which is considered to be unfair, and as prohibiting the court from substituting that term with the rules of ordinary liability law in order to compensate the undertaking for the damage suffered.
67.
As I stated at the outset, I consider it appropriate to address these questions together and will merely recall the relevant case-law of the Court on the matter.
68.
As a preliminary point, I consider it necessary to address the admissibility of these questions.
69.
The order for reference does not make clear the reasons why the national court is asking questions about these aspects or, even less, the national legislative framework in which these questions arise.
70.
The requirements concerning the content of a request for a preliminary ruling are set out in Article 94 of the Rules of Procedure, of which the national court should, in the context of the cooperation instituted by Article 267 TFEU, be aware and which it is bound to observe scrupulously. (
14
)
71.
Whilst there is no doubt that the subject matter of the third, fourth and fifth questions is the interpretation of Article 6 of Directive 93/13, the order for reference does not show as clearly what provisions are the subject matter of the assessment of unfairness, and even less specify what provisions of ‘ordinary law’ the referring court proposes using in place of the term which has been declared unfair.
72.
In any case, it is sufficient to recall the case-law of the Court on the interpretation of Directive 93/13, according to which that article precludes national legislation which permits the national court, once the term contained in a contract between a consumer and a seller of supplier is declared unfair, from modifying that contract by revising the content of that term. (
15
)
73.
As is clear from that case-law, such action by the court would risk compromising the directive’s long-term objective of deterring the incorporation of unfair terms by sellers or suppliers. (
16
)
74.
The wording of Article 6(1) is also clear in that it specifies that the term which has been declared unfair must be removed from the contract so as not to bind the consumer in any way. Therefore, it is evident that any action by the court to moderate or temper the effects of such an unfair term is clearly contrary to a literal, and not only a teleological, reading of the law in question.
75.
As regards the possibility of the national court substituting the unfair term, it should be noted that the only exception in that regard is based on development of the case-law of the Court in Kásler, (
17
) according to which action by the court is deemed to be lawful only if two conditions are satisfied; one, non-application of the term which has been declared unfair entails, under national law, annulment of the contract in its entirety and, two, annulment of that contract exposes the consumer to consequences which are particularly unfavourable (
18
) and disadvantageous.
76.
Furthermore, in addition to the above conditions, the case-law has also specified that the contract can be adjusted only by means of terms which are supplementary in nature by substituting the unfair term with a term which reflects legislative provisions, with no room for any interpretation or ‘creativity’ on the part of the court.
77.
In the present case, which is quite peculiar on account of the consumer’s antisocial behaviour, to which I have referred several times, it is evident that the referring court puts the third, fourth and fifth questions to the Court because it finds itself in a legal framework in which, on the one hand, the interpretation of the national rules at the maximum levels of case-law appears to extend the applicability of the rules on unfair terms to non-contractual cases and, on the other, the case-law of the Court does not allow adaptation of the term in a manner more favourable to the consumer.
78.
In other words, the referring court, whilst well aware of the unlawful nature of the consumer’s behaviour, suspects that the surcharge imposed by the general conditions for failure to purchase a ticket is overly onerous.
79.
Subject to the above considerations, which require the national court to assess the circumstances of the case on the basis of national law in force, within the interpretative framework of the EU law set out above, I consider that the Court of Justice may assess the possibility of a limited and circumscribed extension of a court’s power to take action to amend such terms in respect of national legal frameworks in which the rules on unfair terms can, in that case, apply also to a situation such as that described above.
IV. Conclusion
80.
In the light of the foregoing considerations, I suggest that the Court answer the request for a preliminary ruling put to it by the Vredegerecht te Antwerpen (Magistrates’ Court, Antwerp, Belgium), as regards the second question only, in the following terms:
Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts does not lay down the conditions for the formation of a contract and the rules on unfair terms contained therein apply, in principle, solely to legal relationships of a contractual nature to be classified by the national court on the basis of domestic law. In the case of a passenger who makes use of a transport service without having purchased a ticket and who, as a consequence of that behaviour, is required to pay a surcharge, the national court will have to classify, on the basis of domestic law, the contractual nature or otherwise of the relationship and assess whether the rules on unfair terms can apply to any relationship between sellers and suppliers and consumers, including those of a non-contractual nature. Furthermore, the assessment of the unfairness of the term requiring payment of a surcharge for failure to purchase beforehand and failure subsequently to remedy the situation, as provided for in the general conditions of carriage, will have to be carried out by establishing, in accordance with Article 3 of Directive 93/13, that there has been a significant imbalance in the positions of the parties, also in the light of the fact that interests of a public and private nature are interlinked in such a case and having regard to all the circumstances of the specific case and, in particular, the unlawful nature of the consumer’s conduct.
(
1
)	Original language: Italian.
(
2
)	Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).
(
3
)	Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ 2007 L 315, p. 14)
(
4
)	Wet van 28 februari 2013 tot invoering van het Wetboek van Economisch Recht (Law of 28 February 2013 adopting the Code of Economic Law), Moniteur Belge, 29 March 2013, p. 19975.
(
5
)	Judgment of 21 September 2016, Nationale Maatschappij der Belgische Spoorwegen, C‑261/15, EU:C:2016:709, paragraph 26.
(
6
)	Article 1 provides that ‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer’.
(
7
)	The Court observes, again in the cited ‘Demey judgment’, that the conditions for the formation of a contract of carriage are governed by the relevant national provisions (judgment of 21 September 2016, Nationale Maatschappij der Belgische Spoorwegen, C‑261/15, EU:C:2016:709, paragraph 34).
(
8
)	As regards Article 6, Title II, of Annex I to Regulation No 1371/2007, see judgment of 21 September 2016, Nationale Maatschappij der Belgische Spoorwegen, C‑261/15, EU:C:2016:709, paragraph 35.
(
9
)	Order of 30 May 2018, SNCB, C‑190/18, not published, EU:C:2018:355, paragraph 7, and judgment of 21 September 2016, Nationale Maatschappij der Belgische Spoorwegen, C‑261/15, EU:C:2016:709, paragraphs 12 and 13.
(
10
)	In paragraph 27 of the cited judgment in Demey (judgment of 21 September 2016, Nationale Maatschappij der Belgische Spoorwegen, C‑261/15, EU:C:2016:709), the Court stated, in relation to Article 6, Title II, of Annex I to Regulation No 1371/2007 that the ‘absence of a ticket … may be interpreted only as meaning that a contract of carriage has been concluded beforehand and that the passenger is unable to produce proof that he has purchased a ticket’.
(
11
)	Written observations, paragraph 19.
(
12
)	Written observations, paragraph 12.
(
13
)	Order for reference, p. 12. In this regard the Commission notes that in judgment No 159 of 26 October 2005 the Constitutional Court held that it would be contrary to the principles of equality and non-discrimination enshrined in Articles 10 and 11 of the Belgian Constitution to exclude from the protection against unfair terms public bodies or companies in which the public authorities have a controlling interest which carry on commercial, financial or industrial activities and offer for sale or sell products or services (written observations in the file, paragraph 12).
(
14
)	See, among many, order of 7 September 2017, Alandžak, C‑187/17, not published, EU:C:2017:662, paragraph13 and the case-law cited, and order of 30 May 2018, SNCB, C‑190/18, not published, EU:C:2018:355, paragraph 19 and the case-law cited.
(
15
)	Judgment of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 53; judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraph 73; judgment of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 60; judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282, paragraph 77; and Opinion of Advocate General Pitruzzella in Dziubak, C‑260/18, point 31.
(
16
)	Judgment of 26 March 2019, Abanca Corporación Bancaria, C‑70/17, EU:C:2019:250, paragraph 54; judgment of 14 June 2012, Banco Español de Crédito, C‑618/10, EU:C:2012:349, paragraphs 69 and 70; and order of 16 November 2010, Pohotovosť, C‑76/10, EU:C:2010:685, paragraph 41 and the case-law cited therein.
(
17
)	Judgment of 30 April 2014, Kásler and Káslerné Rábai, C‑26/13, EU:C:2014:282.
(
18
)	Judgment of 30 April 2014, Kásler and Káslerné Rábai, C-26/13, EU:C:2014:282, paragraph 83.