Posts Tagged Directive 93/13
NMBS v Mbutuku Kanyeba et al. A very relaxed CJEU on the notion of ‘contract’ (in EU transport law).
To scholars of private international law, the CJEU judgment last week in Joined cases C-349/18 to C-351/18 NMBS v Mbutuku Kanyeba et al might seem like ending us up in a parallel universe, where unlike in conflicts land, core concepts of private law are understood without much ado.
Additional surcharges were claimed against claimants for having travelled by train without a transport ticket. For either Regulation 1371/2007 on rail passengers’ rights and obligations and Directive 93/13 on unfair terms in consumer contracts, the existence of a ‘contract’ is a clear prerequisite for the application at all of these rules. The AG had opined that the EU rules at issue did not define ‘contract’ and therefore had to defer to the applicable national laws.
The CJEU however has much less hesitation, noting at 36 that ‘the word ‘contract’ is generally understood to designate an agreement by consensus intended to produce legal effects. Secondly, in the context of the field covered by that regulation and in the light of the wording of that provision, that effect consists principally in the obligation imposed on the rail undertaking to provide to the passenger one or more transport services and the obligation imposed on the passenger to pay the price of that transport, unless the service is provided free of charge’.
The Court gives no further explanation. How a ‘contract’ in this context can be ‘generally understood’ as being what the Court says it is (with all the uncertainty relating e.g. to ‘consensus’ and to the reciprocity element it seems to imply) must be a surprise to all those current and past studying ‘contract’ in the conflict of laws. Of course, in the EU rules at issue there is no delineation with ‘tort’ to consider, and the Court in the further paras seems to hint at adopting a flexible interpretation so as to protect passengers (without a contract, they have no rights), the matter of factly approach to the definition must be surprising.
Just a quick note for completeness’ sake on Pitruzzella AG’s Opinion in Joined cases C-349/18 to C-351/18 NMBS v Mbutuku Kanyeba et al. It engages consumer protection law, not conflict of laws. To decide whether there is a ‘contract’ between public transport providers and (alleged) fare dodgers, the AG has no choice but to refer to national law:
La directive 93/13/CEE ne réglemente pas les conditions de formation des contrats et le régime relatif aux clauses abusives qu’elle contient est en principe applicable exclusivement aux relations juridiques d’origine contractuelle, qui doivent être qualifiées par le juge national sur le fondement du droit national.
Readers of the blog will appreciate the echoes of Tessili v Dunlop and Handte /Kalfelis, Feniks etc. discussions.