When a passenger boards an open access train without a ticket, he or she enters into a contract with the carrier. This is the main finding in the judgment issued by the Court of Justice of the EU (CJEU) on Thursday 7 November in joined cases C-349/18 to C-351/18, Kanyeba, Nijs and Dedroog.
The three people involved were fined by the Belgian National Railway Company (SNCB) for travelling without a valid ticket. Having failed to take the necessary steps to sort out their ticket status, all three were brought before the Belgian courts by SNCB, which is claiming amounts between €880.20 and €2,394.
The argument put forward by the Belgian company to support this claim is as follows: the legal relationships between it and the three travellers are not of a contractual nature, but of a regulatory nature, as they have not purchased tickets.
To check the merits of this argument, the Belgian courts refer to the EU Regulation on rail passengers' rights and obligations ((EC) No 1371/200) when determining whether or not boarding a train without a valid ticket establishes a transport contract.
The Court believes that being in possession of a ticket is not what determines whether a contract of this nature exists: the CJEU states that the railway undertaking, by allowing free access to its train, and the passenger, by boarding it, “demonstrate their agreement to enter into a contractual relationship”.
So, can the Belgian courts reduce the penalty imposed on travellers if they believe it is too high? There is a European directive on unfair terms (93/13/EEC). But the Court points out that the clause in question does not fall within the scope of that directive, unless certain conditions are met.
The Court also states that a national court may not reduce a penalty, but must, in principle, set aside application of the clause that is deemed unfair.
To consult the judgment, go to: http://bit.ly/32ruVcS (Original version in French by Agathe Cherki - intern)