Explanatory Memorandum to COM(2017)548 - Rail passengers’ rights and obligations (recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2017)548 - Rail passengers’ rights and obligations (recast). |
|---|---|
| source | COM(2017)548  |
| date | 27-09-2017 |
1. CONTEXT OF THE PROPOSAL
1.1.Reasons for and objectives of the proposal
Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations 1 (the Regulation) aims to protect rail passengers in the EU. Like air, waterborne transport, bus and coach passengers, rail passengers have rights to information, reservations and tickets, assistance, care and compensation in the event of delay or cancellation, freeofcharge assistance (for persons with disabilities and for persons with reduced mobility), compensation in the event of an accident, a quick and accessible system of complainthandling and full application and effective enforcement of EU law through national enforcement bodies (NEBs) designated by Member States.
The Regulation builds on an existing system of international law (the Uniform Rules concerning the Contract for International Carriage of Passengers and Luggage by Rail (CIV) 2 ) and extends its scope to domestic rail passenger services.
In 2013, the Court of Justice of the European Union (CJEU) ruled that the current Article 17 of the Regulation does not allow for railway undertakings to be exempted from compensating passengers for delays caused by force majeure 3 . This distinguishes rail from other transport modes.
The Member States may exempt the following domestic services from the application of the Regulation (apart from certain mandatory requirements):
·longdistance services, for a maximum of five years, renewable twice, i.e. until 2024;
·urban, suburban and regional services, for an unlimited period; and
·services of which a significant part is operated outside the EU, for a renewable period of five years (de facto no time limit).
In its 2013 report on the application of the Regulation 4 , the Commission highlighted certain problematic areas which were confirmed by an impact assessment in 2016/2017 5 . This proposal strikes a balance between strengthening rail passenger rights and reducing the burden on railway undertakings, as follows:
·The 2013 application report and a 2015 report on exemptions 6 identified the extensive use of exemptions as a major hindrance to the uniform application of the Regulation. The proposal removes exemptions for longdistance domestic services by 2020. For services operated outside the EU, it requires that Member States grant exemptions only if they can prove that passengers are adequately protected on their territory. To ensure legal certainty in cross-border regions, the Regulation will apply in full to urban, suburban and regional services that operate across borders.
·The proposal strengthens the rights of persons with disabilities and of persons with reduced mobility. For persons with disabilities it complies with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) 7 . Member States can no longer exempt the provision of assistance and compensation for damaged mobility equipment 8 . Information must be provided in accessible formats in line with the requirements proposed in the European Accessibility Act 9 . Rail staff will have to be trained accordingly.
·Passengers are not always adequately informed when their journey does not go according to plan. The proposal requires that they be given basic information on their rights at booking, e.g. printed on the ticket or electronically. Notices informing passengers of their rights have to be placed in prominent positions in stations and on board.
·The impact assessment confirmed the limited availability of throughtickets. Selling tickets for journey segments only, allows railway undertakings to bypass obligations relating to compensation, re-routing and assistance. By selling throughtickets on their own services only, big market players keep new entrants who cannot offer throughjourneys out of the market.
·The proposal provides for passengers to be given fuller information on throughtickets. In line with the Interpretative Guidelines of 2015 10 and the 4th railway package of 2016 11 , railway undertakings and ticket vendors have to make efforts to offer throughtickets. They must prove that they informed passengers where their passenger rights do not apply to the whole journey but only to its segments.
·It is currently not entirely clear how NEBs should handle complaints and this results in weak enforcement. Passengers’ rights are not always upheld. The proposal sets out the complainthandling process and deadlines in more detail. Passengers should complain to rail operators in the first instance and then, if necessary, to an alternative dispute resolution body (in line with Directive 2013/11/EU 12 ) or an NEB. The proposal specifies NEBs’ responsibilities in cross-border cases and requires them to cooperate effectively.
·The proposal introduces a general clause prohibiting any form of discrimination, e.g. based on nationality, residence, location or currency of payment. This aligns rail with other modes of transport. Passengers who feel that their rights have been infringed can turn to NEBs rather than having to initiate court proceedings under Article 18 of the Treaty on the Functioning of the EU.
·The current inclusion of the CIV Uniform Rules in Annex I to the Regulation can lead to problems of consistency as amendments to the CIV cannot be reflected without a full-fledged revision of the Regulation. Having acceded to the Convention concerning International Carriage by Rail (COTIF) 13 in 2013, 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. However, in order to ensure legal certainty and transparency, the text will remain included in Annex I. To ensure consistency with the COTIF and the CIV, the proposal introduces an empowerment for the Commission to update Annex I to take account of amendments to the CIV.
·Under the 4th railway package, railway undertakings have to draw up contingency plans to protect and assist passengers in the event of major transport disruptions. No such obligations exist for other actors. To reduce the burden on railway undertakings, the proposal obliges station and infrastructure managers also to have contingency plans. Member States will decide on the detail and coordination of the plans with national authorities, for example.
·Depending on applicable national rules, railway undertakings may have difficulties in obtaining redress from a third party responsible for a delay. The proposal enables railway undertakings to use a right to redress, in accordance with applicable law, if delays were caused by a third party’s fault or negligence. The measure aligns rail passenger rights with air passenger rights 14 .
·Railway undertakings have to compensate passengers for delays caused by force majeure. Before the CJEU ruling in 2013, stakeholders commonly understood that the Regulation contained a force majeure clause exempting carriers from compensation. After the ruling, railway undertakings felt discriminated against as compared with other transport operators who benefit from force majeure exemptions.
·The impact assessment found no compelling evidence that the absence of such a clause placed a major economic burden on railway undertakings. However, there is a risk of the principles of legal fairness and proportionality being breached if the railway undertakings have to pay compensation in situations that they did not cause and could not prevent. To limit the restriction of passengers’ rights and ensure legal certainty, the proposal introduces a force majeure clause that applies only in very exceptional situations caused by severe weather conditions and natural disasters 15 .
1.2.Consistency with existing policy provisions in the policy area
The 2011 transport white paper 16 stressed the need for highquality, accessible and reliable passenger rail services and for mobility continuity in the event of travel disruption. It also calls for clarification of passenger rights legislation and improved transport for elderly passengers and those with disabilities or reduced mobility.
The proposal aligns rail with general aspects of passenger rights legislation on other transport modes, notably non-discrimination, contingency planning, disability training, complainthandling and enforcement. It takes account of the specificities of rail transport, e.g. by allowing Member States to exempt urban, suburban and regional services from certain provisions.
Strengthened rights will protect passengers in the liberalised market envisaged under the 4th railway package.
By introducing a force majeure clause, the proposal again ensures consistency with other EU legislation, such as that on passenger rights in other transport modes and the Package Travel Directive 17 , which exempt operators from paying compensation where delays are caused by extraordinary circumstances.
1.3.Consistency with other Union policies
The Regulation will be listed in the Annex to the revised Consumer Protection Cooperation Regulation 18 , which sets out minimum investigation and enforcement powers for national enforcers and procedures for investigations and enforcement where at least two Member States are concerned. This is expected to strengthen crossborder enforcement.
Strengthening the rights of persons with disabilities is in line with the UNCRPD and the 2010-2020 European Disability Strategy 19 . Directive (EU) 2016/797 on the interoperability of the rail system (recast) 20 also contains references to accessibility. The requirements of the European Accessibility Act will apply as regards accessible information. Persons with reduced mobility will also benefit from better accessibility.
The proposal includes references to the COTIF (the CIV Uniform Rules), thus extending its rules to domestic rail transport in the EU. As members of OTIF, the EU and its Member States apply the CIV rules, participate in OTIF general assemblies and vote on revisions to the CIV.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
2.1.Legal basis
The legal basis is Article 91 (1) of the Treaty on the Functioning of the EU, to which the codecision procedure applies.
2.2.Subsidiarity (for non-exclusive competence)
Rail transport is cross-border by nature and even domestic services are used by residents of different EU countries. The divergent application and enforcement of the Regulation creates legal uncertainty, weakens passengers’ rights and affects competition among rail operators. Only coordinated EU intervention can address these issues.
The proposal will ensure similar levels of passenger protection across the EU by reducing national exemptions. More robust rules will create a level playingfield for the rail sector while harmonising basic passenger rights across the EU.
2.3.Proportionality
The proposal complies with the principle of proportionality. Additional costs for the rail sector and national authorities are limited to those necessary to improve the application and enforcement of passengers’ rights. Higher costs due to reduced exemptions and thus increased provision of care, assistance and compensation are balanced inter alia by the introduction of a force majeure clause.
2.4.Choice of instrument
As this proposal aims to revise an existing Regulation, the same instrument will be kept.
3. RESULTS OF EX POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
3.1.Ex post evaluations/fitness checks of existing legislation
No separate ex post evaluation was carried out in addition to the 2013 report. The impact assessment confirmed and, where necessary, updated the findings of the report.
3.2.Stakeholder consultations
For the impact assessment, stakeholders’ input was gathered by various means, including an open public consultation (OPC) and targeted consultations by an external contractor. Both qualitative input (opinions, views, suggestions) and quantitative information (data, statistics) were sought.
The stakeholders included participants from the industry, groups representing passengers/consumers, persons with disabilities and persons with reduced mobility (PRMs), and public authorities, i.e. those affected by the policy, those who apply it and those with a vested interest in it.
Contents
- 3.2.1.Open public consultation
- 3.2.2.Targeted consultations
- 3.2.3.Analysis of results in relation to the main problems identified
- 3.2.3.1.Awareness and information about passenger rights
- 3.2.3.2.Exemptions
- 3.2.3.3.Assistance for persons with disabilities and persons with reduced mobility
- 3.2.3.4.Tasks of the NEBs and enforcement
- 3.2.3.5.Ticketing
- 3.2.3.6.Force majeure
- 3.4.1.Issues linked to the economic analysis
- 3.4.2.Policy option analysis by theme distinguishing between major and secondary issues
- Secondary issues
- Information for all passengers
- Non-discrimination
- CIV
- Contingency planning
- Right to redress
- Complainthandling for railway undertakings
The OPC was held between February and May 2016 on Your voice in Europe 21 to gather stakeholders’ opinions on perceived problems with the Regulation, possible solutions and their likely impacts. There were 190 replies from various categories of respondent: citizens, passenger/consumer associations, PRM organisations, public authorities, industry federations, railway undertakings, infrastructure managers, a ticket vendor and others.
The targeted consultations involved a series of interviews based on questionnaires for the various stakeholders. A set of 13 case studies was produced and the findings were used to refine and finalise the problem definition. In addition, 13 non-case studies were prepared to collect further data.
Passenger and consumer associations complained about low awareness of passenger rights. Of the PRM organisations, five (63 %) suggested that persons with disabilities and persons with reduced mobility are not well informed about their rights and called for better passenger information. The majority of public authorities confirmed low awareness levels and criticised the level of information provided during the journey. Railway undertakings argued that passengers are well informed.
Of the passenger and consumer associations, seven (47 %) agreed that there should be fewer exemptions. Some PRM organisations called for the removal of exemptions but four (50 %) had ‘no opinion’. Industry federations and railway undertakings supported exemptions.
PRM organisations complained about outdated PRM rights and insufficient information. Passenger and consumer associations shared this view. Other problems relate to the accessibility of stations and rolling stock, costly pre-notification processes, refusal to provide assistance and a lack of available assistance at certain times of the day. Railway undertakings were mostly concerned with abuses of PRM assistance as a free ‘porter’ service.
Citizens, passenger/consumer associations and PRM organisations complained about inadequate complainthandling procedures. NEBs called for their roles and tasks to be clarified. The infrastructure manager considered that only railway undertakings should handle complaints. Industry federations disagreed with the proposal to strengthen the role of NEBs. They and the infrastructure manager favoured a deadline of three months for lodging complaints.
Passenger and consumer associations asked for clarification on throughtickets. Of the railway undertakings, eight (73 %) suggested that the concepts of ‘carrier’ and ‘missed connection’ were unclear, while seven (64 %) found the concept of ‘throughticket’ clear. One NEB found that the Interpretative Guidelines complicated the issue of throughtickets, but industry federations did not share this view.
A majority of respondents among citizens, passengers/consumers and PRM associations, and several NEBs rejected the introduction of a force majeure clause. On the other hand, industry federations and railway undertakings were in favour of such a clause to bring rail into line with other transport modes and ensure legal clarity and consistency. An informal consultation of Member States showed a majority in favour of a force majeure clause.
3.3.Collection and use of expertise
The Commission sought expertise from an external contractor (Steer Davies Gleeve), collected data, prepared case studies and provided an analytical tool for the impact assessment. The study report will be publicly available once approved.
3.4.Impact assessment
A first impact assessment report was submitted to the Regulatory Scrutiny Board (RSB) on 18 January 2017. The RSB issued a negative opinion on the basis of shortcomings as regards, in particular, the economic justification for the introduction of a force majeure clause. Other issues concerned the structure and content of policy options, the representation of stakeholders’ views, and the analysis and comparison of policy impacts, especially regarding cost and monitoring arrangements.
The shortcomings were addressed as follows: in view of the high number of unconnected options, policy options were broken down, in a sequential approach analysing and comparing costs and benefits and selecting a preferred policy scenario per theme. The final preferred option is thus a combination of preferred scenarios by individual topic. As regards force majeure, the very limited evidence available showed the minor economic scale of the problem. Nevertheless, the impact assessment addressed the issue in response to significant stakeholder demand from the railway sector and Member States, notably to ensure that the principles of legal fairness and proportionality are respected.
A revised impact assessment report was submitted to the RSB on 7 April 2017 and received a positive opinion on 12 May 2017. The final report, which responds to the RSB's recommendations for clarifying certain aspects further, is submitted together with this proposal.
The key economic and social costs and benefits were calculated quantitatively according to the data available. Other costs and benefits were assessed qualitatively. The overall net social value was assessed on the basis of the conflicting interests of the two main stakeholders: passengers and the rail sector. The impact assessment looked at the impact of the following on railway undertakings’ costs:
(a) compensation for delays;
(b) assistance for passengers in the event of disruptions/delays; and
(c) staff training on PRM issues.
There is a direct correlation between costs and passenger welfare, e.g. more compensation for delays equals greater passenger welfare.
All costs and benefits are analysed over a 15-year period (2020-2035).
Major issues
| Exemptions | ||
| Policy scenario A | Policy scenario B | Policy scenario C |
| ·Bring removal of exemptions for longdistance domestic services forward to 2020; ·Limit exemptions for services with nonEU countries | ·Bring removal of exemptions for longdistance domestic services forward to 2020; ·Limit exemptions for services with nonEU countries; ·Remove exemptions for crossborder urban, suburban and regional services | ·Bring removal of exemptions for longdistance domestic services forward to 2020; ·Limit exemptions for services with nonEU countries; ·Remove exemptions for cross-border urban, suburban and regional services; ·Remove exemptions for all urban, suburban and regional services |
The impact assessment selected scenario B as the preferred option. It involves a balanced compromise between the conflicting interests of passengers and railway undertakings by increasing passenger protection without imposing an excessive financial burden on the rail industry (0.13 % overall cost increase expected for the rail sector). Complete removal of exemptions on urban, suburban and regional services would represent an excessive burden for the rail sector bearing the risk that some operators decide to discontinue services.
| Applicability of PRMs rights to all services | |
| Policy scenario A | Policy scenario B |
| ·Guidelines to promote application of PRM rights | ·Regulatory provision on application of PRM rights |
The impact assessment selected scenario B as the preferred option. It combines greater benefits for PRMs with a low burden for the rail industry.
| Information for PRMs | |
| Policy scenario A | Policy scenario B |
| ·Journey information is accessible to all PRMs | ·Journey information is accessible to all PRMs; ·Information on passenger rights is accessible to all PRMs |
The impact assessment selected scenario B as the preferred option. It involves a comprehensive approach to the problem of inaccessible information without generating high costs for the rail sector.
| PRM assistance | |
| Policy scenario A | Policy scenario B |
| ·Bestpractice exchange on disability awareness training | ·Require disability awareness training for rail staff |
Providing disability awareness training does not represent a high burden for the rail sector, with an increase of only 0.31 % in its total costs. The impact assessment therefore selected scenario B as the preferred option.
| Complainthandling | |
| Policy scenario A | Policy scenario B |
| ·Guidelines for the rail sector | ·Regulatory provisions (new obligations for station and infrastructure managers) |
The impact assessment selected scenario B as the preferred option. The rail sector will have to follow a clear, detailed complainthandling process. Passengers will have better means of complaint and redress.
| Throughtickets | |
| Policy scenario A | Policy scenario B |
| ·Define throughticket and linked obligations | ·Define throughticket and linked obligations; ·Encourage railway undertakings and ticket vendors to sell throughtickets wherever possible; burden of proof on undertakings and vendors if no throughticket was sold |
The impact assessment selected scenario B as the preferred option. It involves not only defining throughtickets, but also encouraging undertakings and vendors to offer them and requiring them to inform passengers about their rights.
| NEB complainthandling and enforcement | |
| Policy scenario A | Policy scenario B |
| ·NEBs report on their activities | ·Detailed instructions on the complainthandling process; ·Duty on NEBs to cooperate on crossborder issues |
The impact assessment selected scenario B as the preferred option. It clarifies NEBs’ roles and responsibilities in relation to complainthandling and cooperation, including on crossborder issues. Improved NEB working arrangements will lead to better enforcement.
| Force majeure | |
| Policy scenario A | Policy scenario B |
| ·Introduce a force majeure clause in Article 17 (compensation); ·Narrow definition of force majeure | ·Introduce a force majeure clause in Article 17 (compensation); ·Broad definition of force majeure |
The introduction of a force majeure clause will reduce the financial burden on railway undertakings. At the same time it will reduce passengers' right to compensation. Scenario B, which is based on a broad definition of force majeure, involves greater financial relief for railway undertakings (EUR 1 299 million more than the baseline scenario and EUR 737 million more than scenario A). With the narrow definition (scenario A), the reduction of passenger rights will be limited, while the burden on railway undertakings will still be reduced as compared with the baseline.
The reduction in passenger rights is counter-balanced by greater benefits to passengers, notably through reduced exemptions and PRM measures, which are expected to reach EUR 191 million. As rights to assistance, care and information are not affected by the clause, a high level of consumer protection is still guaranteed. The burden on NEBs might increase slightly in view of interventions in controversial cases. The narrow definition of force majeure leaves less room for interpretation and will trigger fewer interventions.
The impact assessment therefore selected scenario A as the preferred option, as it ensures a fair balance between the interests of passengers and the rail industry. The burden to prove the existence of a force majeure lies with the railway undertaking.
For a number of secondary issues relating to information, non-discrimination, the CIV, contingency planning, the right to redress and complainthandling by railway undertakings, only one policy scenario is suggested.
·Information on rail passenger rights is provided together with the ticket;
·Information on passenger rights is provided in stations and on board trains
·Prevent discrimination on the basis of nationality, location or currency
·Consistency between the Regulation and the COTIF/CIV rules
Introducing a specific empowerment for the Commission to update the Annex I of the Regulation to take account of amendments to the CIV will ensure consistency between the two.
·Servicecontinuity and contingencyplanning obligations apply to actors other than railway undertakings
Burdensharing with other stakeholders will limit the cost for railway undertakings.
·Right to redress from third parties
Railway undertakings will have easier access to redress from third parties responsible for delays.
·Specify deadlines for passengers to lodge complaints
Time limits for lodging complaints will reduce costs, as incident data will not need to be stored for a long period of time.
3.5.Fundamental rights
Article 38 of the Charter of Fundamental Rights requires that Union policies ensure a high level of consumer protection. Article 26 of the Charter calls for the integration of persons with disabilities and requires Member States to take measures to ensure their independence, social and occupational integration, and participation in the life of the community. Strengthening the rights of rail passengers in the EU will further raise the overall high level of consumer protection.
4. BUDGETARY IMPLICATIONS
The proposal has no implications for the EU budget.
5. OTHER ELEMENTS
5.1.Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will monitor the implementation and effectiveness of this initiative on the basis of progress indicators such as numbers of exempted services, percentage of staff receiving disability training, number of assistance requests, compliance with information requirements, number of throughtickets sold, number of complaints and compensation payments. Five years after the entry into force of the proposed legislation, the Commission will evaluate whether its objectives were reached.
🡻 1371/2007/EC (adapted)