—

Nationale Maatschappij der Belgische Spoorwegen NV, by J.-P. Kesteloot, advocaat,

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Mr Demey, by K. Bentein, advocaat,

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the French Government, by D. Colas, F.-X. Bréchot and M.-L Kitamura, acting as Agents,

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the European Commission, by F. Wilman, J. Hottiaux and N. Yerrell, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of the final sentence of Article 6(2) of Appendix A to the Convention Concerning International Carriage by Rail (COTIF) of 9 May 1980, as modified by the Protocol for the modification of the Convention Concerning International Carriage by Rail of 3 June 1999 (‘Appendix A’), in Annex I to 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).

2

The request has been made in proceedings between Nationale Maatschappij der Belgische Spoorwegen NV (Belgian National Railways) (NMBS) and Mr Gregory Demey concerning the payment of lump-sum compensation claimed following criminal offences committed by Mr Demey in travelling on a train without a ticket, without regularising his situation within the prescribed periods laid down by law.

3

Article 4 of Regulation No 1371/2007, entitled ‘Transport contract’, provides:

‘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.’

4

Annex I to that regulation, entitled ‘Extract from Uniform Rules concerning the contract for international carriage of passengers and luggage by rail (CIV)’, is composed of Appendix A. Title II of Appendix A in Annex I, entitled ‘Conclusion and performance of the contract of carriage’, comprises Articles 6 to 11 of that appendix.

5

Article 6 of Appendix A, entitled ‘Contract of carriage’, provides:

‘1.   By the contract of carriage the carrier 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.’

6

Article 7 of Appendix A relates to tickets.

7

Article 8 of Appendix A, entitled ‘Payment and refund of the carriage charge’ provides, in paragraph 1, that the carriage charge is to be payable in advance, subject to a contrary agreement between the passenger and the carrier.

8

Article 9 of Appendix A, entitled ‘Right to be carried. Exclusion from carriage’, provides:

‘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:

2.   The General Conditions of Carriage may provide that passengers who:

9

Articles 10 and 11 of Appendix A relate to the completion of administrative formalities and the cancellation and late running of trains, respectively. Title III of Appendix A in Annex I to Regulation No 1371/2007 governs the carriage of hand luggage, animals, registered luggage and vehicles.

10

The first subparagraph of Article 15(1) of Koninklijk besluit van 20 december 2007 houdende reglement van de politie op de spoorwegen (Royal Decree of 20 December 2007 laying down policing regulations with regard to the railways) (Belgisch Staatsblad, 15 July 2008, p. 36973) provides:

‘The railroad vehicles and platforms shall be accessible only to travellers who, in accordance with the general conditions of carriage of the railway company concerned, are in possession of a valid ticket, or who, in accordance with those general conditions of carriage, arrange to purchase such a ticket.’

11

Article 18(1) of that royal decree provides:

‘Infringements of the provisions of this Decree shall be punishable pursuant to Article 3 of the Law of 12 April 1835 concerning tolls and policing regulations with regard to the railways, even if committed negligently.’

12

Article 3 of the Wet van 12 april 1835 betreffende het tolgeld en de reglementen van de spoorwegpolitie (Law of 12 April 1835 concerning tolls and policing regulations with regard to the railways) (published on 17 April 1835) provides that the Government may determine penalties in accordance with the Wet van 6 maart 1818 betreffende de straffen uit te spreken tegen de overtreders van algemene verordeningen of te stellen bij provinciale of plaatselijke reglementen (Law of 6 March 1818 on the penalties to be imposed for infringements of general measures of internal administration and the penalties which may be decided by the regulations of the provincial or municipal authorities) (published on 6 March 1818).

13

Under Article 1(1) of the Law of 6 March 1818, ‘infringements of the Royal Decrees, in respect of which no specific penalties have been or will be laid down by law, … shall be punishable by a prison sentence of between eight and fourteen days and by a fine of between twenty-six and two hundred francs, or by one of those penalties alone’.

14

Article 74 of the Wet van 6 april 2010 betreffende marktpraktijken en consumentenbescherming (Law of 6 April 2010 concerning market practices and consumer protection) (Belgisch Staatsblad, 12 April 2010, p. 20803) (‘the Law concerning market practices’), 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:

...

...

...’

15

Article 75 of the Law concerning market practices provides, in paragraph 1:

‘Any unlawful clause shall be void.

The contract shall remain binding on the parties if it can survive without the unlawful clauses.

Consumers may not waive the rights conferred on them by this section.’

16

During inspections carried out in September and October 2013, Mr Demey was found on four occasions to be travelling as a train passenger in Belgium without a ticket. The train inspector requested Mr Demey to regularise his situation by paying within 14 days the fare of EUR 11.20 plus EUR 8, making a total of EUR 19.20 per journey. Mr Demey failed to regularise his position within the specified period and failed to act on the letters requesting payment sent by the NMBS.

17

Consequently, the NMBS brought legal proceedings against Mr Demey before the vredegerecht te Ieper (Magistrates’ Court, Ypres, Belgium) and requested the payment of additional lump-sum compensation of EUR 800, that is, EUR 200 for each unticketed journey, instead of the administrative surcharge of EUR 8 per journey originally claimed.

18

The NMBS submits that the EUR 200 lump-sum compensation for each journey is justified by the criminal offences committed by Mr Demey. The NMBS considers that the consensual nature required in order for there to be a contract of carriage is lacking in the present case, since Mr Demey committed an offence in deliberately taking the train without a ticket. Consequently, it takes the view that he may not enjoy the legal protection afforded him as a consumer, inter alia by Articles 74 and 75 of the Law concerning market practices.

19

Mr Demey contends that he enjoys the legal protection afforded by Article 74.17 and 74.24 of that law, since, in accordance with the final sentence of Article 6(2) of Appendix A of Annex I to Regulation No 1371/2007, the absence of a ticket does not affect the existence or validity of the contract.

20

The referring court notes that the argument put forward by Mr Demey is based on the existence of a contractual relationship between him and the NMBS. On the other hand, it considers that the argument relied on by the NMBS implies that Mr Demey committed a criminal offence. Consequently, the referring court asks whether, in the present case, there is a contract of carriage between Mr Demey and the transport company on the basis of the final sentence of Article 6(2) of Appendix A of Annex I to Regulation No 1371/2007 and whether it may, therefore, apply the provisions of the Law concerning market practice which are based on the existence of such a contract.

21

In those circumstances the vredegerecht te Ieper (Magistrates’ Court, Ypres) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Does Article 6(2), [final sentence], of [Appendix A in] Annex I to [Regulation No 1371/2007] preclude the Belgian national penalty provisions, as [set out in paragraphs 10 to 13] above, under which a train passenger without a ticket — and in the absence of regularisation within the periods laid down in the relevant regulations — commits a criminal offence, which excludes any contractual relationship between the transport company and the train passenger, with the consequence that [the benefit of] the legal protection provisions under European and Belgian national law which are based on that (exclusive) contractual relationship with that consumer, …, is also denied to the train passenger?’

22

By its question, the referring court asks, in essence, whether the final sentence of Article 6(2) of Appendix A in Annex I to Regulation No 1371/2007 must be interpreted as precluding national provisions which lay down that a person making a train journey while not in possession of a ticket for that purpose, who fails to regularise his situation within the periods laid down in those provisions, does not have a contractual relationship with the railway undertaking.

23

In the context of the main proceedings, the parties disagree as to whether, by reason of Article 6(2) referred to above, a contract of carriage is concluded as soon as a person travels in a train, irrespective of whether or not he is in possession of a ticket for that purpose. It must, therefore, be ascertained whether Article 6(2) of Appendix A in Annex I to Regulation No 1371/2007 governs the conditions for the formation of a contract of carriage.

24

It must be noted that Article 4 of Regulation No 1371/2007, entitled ‘Transport contact’, provides that the conclusion of a transport contract is to governed by the provisions of Title II and Title III of Appendix A in Annex I to that regulation. However, those provisions do not govern in detail the conditions for the formation of such a contract.

25

In accordance with Article 6(2) of Appendix A in Annex I to Regulation No 1371/2007, ‘[t]he 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.’

26

It is apparent from the language of that provision that Article 6(2) presupposes the existence of a contract of carriage concluded beforehand and relates only to the proof of the existence of such a contract, which must be confirmed by one or more tickets. The second sentence of that provision is directed at cases in which the rail passenger is unable to produce a ticket or the ticket is irregular and provides, in those cases, that the existence and validity of the contract of carriage are not affected, without specifying the rules in accordance with which the contract of carriage must be concluded.

27

In particular, the absence of a ticket referred to in the second sentence 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, if it is not to deprive the first sentence of that provision of any practical effect.

28

In accordance with Article 6(1) of Appendix A in Annex I to Regulation No 1371/2007, the carrier must undertake, by the contract of carriage, to carry the passenger as well as, where appropriate, luggage and vehicles to the place of destination. That provision is also based upon the premiss that a contract of carriage has been concluded beforehand, but does not provide any details as to the manner in which it ought to have been concluded.

29

Similarly, Article 6(3) of Appendix A simply states that the ticket is to be prima facie evidence of the conclusion and the contents of the contract of carriage.

30

It follows that Article 6(2) of Appendix A cannot be interpreted as governing the conditions for the formation of a contract of carriage.

31

That finding is supported by an analysis of the context of that provision.

32

Under Article 9 of Appendix A in Annex I to Regulation No 1371/2007 to which Article 6(2) of that appendix refers, the passenger must, from the start of his journey, be in possession of a valid ticket and produce it on the inspection of tickets. Article 9 also provides that the General Conditions of Carriage may provide that a passenger who does not produce a valid ticket must pay, in addition to the carriage charge, a surcharge or that a passenger who refuses to pay the carriage charge or the surcharge upon demand may be required to discontinue his journey. Article 9 provides, therefore, only for the penalties which may be applied to a passenger who did not have a ticket and had not subsequently regularised his situation and does not provide any indication of the conditions for the formation of the contract of carriage.

33

The same is true of the other provisions of Title II of Appendix A in Annex I to Regulation No 1371/2007. Article 8 of Appendix A provides, in paragraph 1, that the carriage charge must be payable in advance, subject to a contrary agreement between the passenger and the carrier. Article 7 of Appendix A concerns tickets and Articles 10 and 11 of Appendix A relate to the completion of administrative formalities and the cancellation and late running of trains, respectively.

34

In those circumstances, it must be concluded that Article 6(2) of Appendix A in Annex I to Regulation No 1371/2007 cannot be interpreted as governing the conditions for the formation of a contract of carriage, those conditions being governed by the relevant national provisions.

35

In the light of the foregoing considerations, the answer to the question referred is that the final sentence of Article 6(2) of Appendix A in Annex I to Regulation No 1371/2007 must be interpreted as not precluding national provisions which lay down that a person making a train journey while not in possession of a ticket for that purpose, who fails to regularise his situation within the periods laid down in those provisions, does not have a contractual relationship with the railway undertaking.

36

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

The final sentence of Article 6(2) of Appendix A to the Convention Concerning International Carriage by Rail (COTIF) of 9 May 1980, as modified by the Protocol for the modification of the Convention Concerning International Carriage by Rail of 3 June 1999, in Annex I to 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 not precluding national provisions which lay down that a person making a train journey while not in possession of a ticket for that purpose, who fails to regularise his situation within the periods laid down in those provisions, does not have a contractual relationship with the railway undertaking.