Transorient – Mosaïque Voyages et Culture SA

(Reference for a preliminary ruling from the Collège d’arbitrage de la Commission de Litiges Voyages)

(Questions referred for a preliminary ruling – Reference to the Court – National court or tribunal within the meaning of Article 234 EC – Arbitration panel)

Judgment of the Court (Fourth Chamber), 27 January 2005

Summary of the Judgment

Preliminary rulings – Reference to the Court – National court or tribunal within the meaning of Article 234 EC – Meaning – Arbitration panel – Excluded

(Art. 234 EC)

An arbitration tribunal, such as the Collège d’arbitrage de la Commission de Litiges Voyages (Belgium), which resolves disputes between individuals and travel agencies, is not a court or tribunal within the meaning of Article 234 EC where the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the Belgian public authorities are not involved in the decision to opt for arbitration.

(see paras 13, 15-16, operative part)

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JUDGMENT OF THE COURT (Fourth Chamber) 27 January 2005 (1)

(Questions referred for a preliminary ruling – Reference to the Court – National court or tribunal within the meaning of Article 234 EC – Arbitration panel)

In Case C-125/04, REFERENCE for a preliminary ruling under Article 234 EC from the Collège d’arbitrage de la Commission de Litiges Voyages (Belgium), made by decision of 4 December 2003, received at the Court on 8 March 2004, in the proceedings

Guy Denuit, Betty Cordenier

Transorient – Mosaïque Voyages et Culture SA,

THE COURT (Fourth Chamber),

composed of K. Lenaerts, President of the Chamber, N. Colneric and J.N. Cunha Rodrigues (Rapporteur), Judges, Advocate General: A. Tizzano, Registrar: R. Grass, having regard to the written procedure, after considering the observations submitted on behalf of:

– the Belgian Government, by E. Dominkovits, acting as Agent,

– the Commission of the European Communities, by A. Aresu and J.‑P. Keppenne, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following

Legal background

– transportation costs, including the cost of fuel,

– dues, taxes or fees chargeable for certain services, such as landing taxes or embarkation or disembarkation fees at ports and airports,

– the exchange rates applied to the particular package.’

Dispute in the main proceedings and the questions referred

6. In the agency’s special conditions it is stated that ‘the price of these services have been calculated on the basis of the dollar rate in force on publication of this brochure (January 2002 – EUR 1 = USD 0.91). Any alteration in either direction of more than 10% prior to departure will enable us to adjust our prices.’

8. The agency refused to reimburse the claimants in the main proceedings, relying in particular on Article 11(1) of the law of 16 February 1994.

9. The claimants in the main proceedings then brought the matter before the Collège d’arbitrage de la Commission de Litiges Voyages (Arbitration Panel of the Travel Dispute Committee), a non-profit-making association governed by Belgian law.

10. Taking the view that the dispute before it necessitated an interpretation of Article 4(4) of the directive, the Collège d’arbitrage de la Commission de Litiges Voyages decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Where a clause in a contract between a consumer and a [travel] organiser and/or retailer provides only for the possibility of an upward price revision and states precisely how the revised price is to be calculated, solely to allow for variations set down in an exhaustive list by Article 4(4) of Directive 90/314/EEC, must that article be interpreted as implicitly requiring downward price revision according to the same method of calculation?

(2) Where a clause in a contract between a consumer and an organiser and/or retailer provides for the possibility of both upward and downward price revision without stating precisely how the revised price is to be calculated, and solely to allow for variations set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as invalidating the entire clause or as limiting that invalidity to upward price revision?

(3) Where a clause in a contract between a consumer and an organiser and/or retailer gives only the organiser and/or retailer the possibility of revising prices upwards or downwards, stating precisely how the revised price is to be calculated, solely to allow for variations set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as rendering the whole clause void, or is its invalidity limited to upward price revision?

(4) Where a clause in the contract between a consumer and an organiser and/or retailer gives both the travel organiser and/or retailer and the consumer the possibility of benefiting from upward and downward price revision, and states precisely how the revised price is to be calculated, solely to allow for variations set down in an exhaustive list by Article 4(4)(a) of Directive 90/314/EEC, must that article be interpreted as requiring the travel organiser and/or retailer to revise the price downwards if the consumer has not asked it to do so?’

Competence of the Court

11. As a preliminary issue it must be examined whether the abovementioned Collège d’arbitrage should be regarded as a court or tribunal for the purposes of Article 234 EC.

13. Under the Court’s case-law, an arbitration tribunal is not a ‘court or tribunal of a Member State’ within the meaning of Article 234 EC where the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the public authorities of the Member State concerned are not involved in the decision to opt for arbitration nor required to intervene of their own accord in the proceedings before the arbitrator (Case 102/81 ‘Nordsee’ Deutsche Hochseefischerei [1982] ECR 1095, paragraphs 10 to 12, and Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraph 34).

14. In the main proceedings it is apparent from the decision to refer the matter that submission of the matter to the arbitration panel of the travel dispute committee stems from an arbitration agreement entered into between the parties.

15. Belgian legislation does not lay down recourse to this arbitration board as the sole means of resolving a dispute between an individual and a travel agency. It is true that an ordinary court before which a dispute is brought to which an arbitration agreement applies must decline jurisdiction under Article 1679(1) of the Belgian judicial code. None the less, jurisdiction of the arbitration panel is not mandatory in the sense that, in the absence of an arbitration agreement entered into between the parties, an individual may apply to the ordinary courts for resolution of the dispute.

16

Since in the main proceedings the parties are under no obligation, in law or in fact, to refer their disputes to arbitration and the Belgian public authorities are not involved in the decision to opt for arbitration, the Collège d’arbitrage de la Commission de Litiges Voyages cannot be regarded as a court or tribunal of a Member State for the purposes of Article 234 EC.

17

Accordingly, the Court is not competent to rule on questions referred to it by that body.

Costs

18

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the Collège d’arbitrage de la Commission de Litiges Voyages, the decision on costs is a matter for that body. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) rules as follows:

The Court is not competent to rule on questions referred to it by the Collège d’arbitrage de la Commission de Litiges Voyages.

[Signatures]

Language of the case: French.