Single European Railway Area: Commission Proposes Changes To Rail Passenger Rights

Rail travel passengers can be entitled to compensation in the case of delays or cancellations of a rail service. The rights and obligations of rail passengers are warranted by EU legislation, in the same way as the rights of passengers in air travel, waterborne transport or bus and coach travel.

However, the existing legislation on rail passengers’ rights is not as effective as was expected, mainly because of an extensive use of exemptions. A 2015 report from the Commission found that just four Member States fully applied EU rules. According to the press conference on this matter of 28 September 2017, that number has risen to five Member States since the report. All others have granted exemptions to various degrees, hindering a uniform application of the Regulation.

The report concludes that the use of exemptions has led to a patchwork of different rights for rail passengers in the EU. The exemptions prevent the creation of a level playing field for railway enterprises (referred to as “undertakings” in the legislation) and deprive passengers of legal certainty. The report also found that the legislation is not well enforced, because of unclear provisions on complaint handling. In addition, the legislation is non-compliant with new regulations concerning persons with disabilities.

A final point of critique concerns the rights of the railway companies. The Court of Justice of the EU (CJEU) ruled in the Case C 509/11 ÖBB-Personenverkehr in 2013 that, under current legislation, railway enterprises needed to compensate passengers for delays even if they were caused by force majeure. This distinguishes rail transport legislation from the other modes of transport, where force majeure clauses are in place to protect the companies from excessive and unfair compensation requirements.

Proposal that should benefit all parties

All in all, the current legislation is unsatisfactory for all parties involved. This situation has now led to a proposal for a revision of the Regulation.

This proposal from the European Commission, dated 27 Sep 2017, amends Regulation (EC) 1371/2007 on rail passengers’ rights and obligations.

A Regulation is a binding legislative act, immediately enforceable in all Member States when it becomes law.

The main goals of this proposal are to make the existing legislation better, more effective and more inclusive, but also to make it more compliant with other legislation. To achieve this, it encompasses a wide variety of changes to the original Regulation. Whole parts have been changed, erased or rewritten. The proposed changes start with the general provisions, including the subject matter and the scope and definitions. New information rights and obligations that deal with the transport contract and tickets are proposed, as well as new rules on compensation in case of delays or cancellations.

This proposal would take out several exemptions and passengers’ rights would be better protected throughout the EU. At the same time, it would also give the rail companies more protection by adding a force majeure clause.

Key elements of the proposal

The proposal intends to strengthen rail passengers’ rights whilst reducing the burden on railway enterprises. To achieve this, the proposal removes exemptions for long-distance domestic services by 2020. For services outside the EU, Member States only get exemptions if they can prove that passengers are adequately protected on their territory. The Regulation would also apply to urban, suburban and regional services that operate across borders.

It would strengthen the rights of persons with disabilities and of persons with reduced mobility. The proposal complies with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and the 2010-2020 European Disability Strategy. Member States can no longer exempt the provision of assistance and compensation for damaged mobility equipment. Information must be provided in accessible formats in line with the European Accessibility Act. Rail staff will have to be trained accordingly and the availability of on-board assistance for these persons becomes obligatory.

The proposal also requires that passengers are given information on their rights on booking, e.g. printed on the ticket or electronically. Notices informing passengers of their rights must be placed in prominent positions in stations and on board trains. Passengers are to be given fuller information on through-tickets as well. In line with the Interpretative Guidelines of 2015 and the 4th Railway Package of 2016, railway enterprises and ticket vendors have to make an effort to offer through-tickets. They must prove that they informed passengers where their passenger rights do not apply to the whole journey but only to segments.

Having acceded to the Convention Concerning International Carriage by Rail (COTIF), the EU is now a member of the Intergovernmental Organisation for International Carriage by Rail (OTIF) and participates in its work to revise the CIV. To ensure legal certainty and transparency, the CIV text is included in Annex 1. The proposal also takes possible amendments to the CIV into account.

Enforcement of the current legislation is weak as it is unclear how the bodies tasked with the enforcement of the legislation, referred to as national enforcement bodies (NEBs), should handle complaints. The proposal sets out the complaint-handling process and deadlines in more detail; for example, it specifically addresses ticket vendors, station managers and infrastructure managers of stations handling more than 10,000 passengers per day. It also describes how complaints should be submitted within six months of the incident, made available for the NEBs and retained on file for two years.

Concerning the railway companies, the proposal states, in line with the 4th Railway Package, that railway enterprises would have to draw up contingency plans to protect and assist passengers in the event of major transport disruptions.

But along with greater obligations, the proposal also gives the enterprises new rights. Depending on applicable national rules, railway companies may have difficulties in obtaining redress from a third party responsible for a delay. A key aspect of the proposal covers a right to redress if delays were caused by a third party’s fault or negligence. This aligns rail passenger legislation with that covering air passengers.

And last but not least: to make the legislation more proportionate, a force majeure clause for cases of severe weather conditions and natural disasters is added by the proposal. Article 17.8 states that: “a railway undertaking should not be obliged to pay compensation if it can prove that the delay was caused by severe weather conditions or major natural disasters endangering the safe operation of the service.” However, they do need to prove that they could not foresee or prevent the delay, even if all reasonable measures had been taken. A possible problem here is that the proposal does not state how the companies should prove that the delay was caused by force majeure – an important aspect, especially given the problems caused by the vagueness of the existing legislation. The wording leaves some room for interpretation, so all might depend on how the parties and possibly the CJEU will interpret the article.

Next steps

The proposal has been sent to the European Parliament and to the Council for consideration.

These institutions are expected to express their positions on the Commission’s proposals before starting inter-institutional negotiations, with a view to reaching a first reading agreement.

If the Regulation is adopted, the Commission will report on its implementation and result to the Council and the Parliament after it has been in place for five years.

Additional facts

  • Regulation (EC) 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations
  • Proposal for a Regulation of the European Parliament and of the Council on rail passengers’ rights and obligations COM(2017)548
  • Report from the Commission to the European Parliament and the Council on Exemptions granted by Member States under Regulation (EC) 1371/2007 on rail passengers’ rights and obligations COM(2015)117
  • Report from the Commission to the European Parliament and the Council Report on the Application of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on Rail Passengers' Rights and Obligations COM(2013)587
  • Judgment of the Court (First Chamber), 26 September 2013 ÖBB-Personenverkehr AG Request for a preliminary ruling from the Verwaltungsgerichtshof Regulation (EC) No 1371/2007 — Rail passengers’ rights and obligations — Article 17 — Compensation in the event of a delay — Excluded in the event of force majeure — Whether permissible — First subparagraph of Article 30(1) — Powers of the national body responsible for the enforcement of the regulation — Whether it is possible to require the rail carrier to amend its conditions governing passenger compensation Case C‑509/11