New Guidelines issued by the European Commission
In July of this year, the European Commission published a new Communication on Interpretive Guidelines (the "Guidelines") in relation to Regulation (EC) No. 1371/2007 (the "Regulation") of the European Parliament and of the Council on rail passengers' rights and obligations. The aim of the Regulation is to protect rail passengers' rights and improve the quality and effectiveness of rail passenger services across the EU, ensuring a standardised level of service and protection for all.
The Guidelines seek to answer the questions most commonly raised by national enforcement bodies, passengers, passenger associations, industry representatives and the European Parliament in relation to the Regulation. Whilst the Guidelines have no substantive legal effect (and do not cover all the provisions of the Regulation in full), they have been published with the intention of counteracting a perceived lack of enforcement of the Regulation across the EU and to provide Member States with some assistance in relation to the implementation and enforcement of the Regulation. The Guidelines support said implementation by providing additional explanations in respect of a number of the provisions within the Regulation, as well as providing guidance on best practices. A high level overview of the key aspects of the Guidelines is provided below.
The Guidelines provide new explanations and guidance in relation to the following areas:
The Scope of the Regulation in relation to carriers from third countries
The Guidelines confirm that carriers from outside of the EU who have not established a base in a Member State cannot operate rail services within the EU. In the case of cross-border services which arrive at or depart from a country outside of the EU, traction within the EU must be provided by an undertaking licensed in a Member State. Undertakings licensed by the Member States must comply with and may be liable under the Regulation.
Exemptions in relation to domestic services
The Regulation allows Member States to exempt domestic services from most provisions contained within the Regulation for a limited time period (five years, renewable twice i.e. for a maximum of 15 years). The Guidelines state that new exemptions should not be granted several years after the entry into force of the Regulation and confirm that the maximum duration of exemptions cannot be exceeded. This means that no exemption can continue to apply beyond 3 December 2024 (15 years after the Regulation came into force).
Exemptions in relation to cross-border urban, suburban and regional rail services
The Guidelines confirm that provisions contained within the Regulation allowing Member States to exempt urban, suburban and regional rail services can be applied to cross-border services which are classed as falling within this category. However, the Guidelines go on to qualify this position by recommending and encouraging Member States to grant all rights under the Regulation to passengers on cross-border urban, suburban and regional rail services, and not to apply exemptions in respect of these services.
Exemptions in relation to journeys predominantly carried out outside of EU
Under Article 2(6) of the Regulation, Member States may grant exemptions from the Regulation - in each case for a maximum initial duration of five years - in respect of services where a significant part of the relevant journey is conducted outside of the EU. The Regulation provides for such exemptions to be capable of renewal by Member States, without specifying the number of occasions on which this may be done. The Guidelines clarify this position by noting that: (i) the purpose of Article 2(6) is to allow Member States time to adequately adapt their relations with countries outside the EU so as to reflect the requirements of the Regulation; and (ii) exemptions under Article 2(6) should not be seen as being indefinitely renewable.
The Guidelines have updated the concepts of both "carrier" and "delay". In regards to "carrier", the Guidelines note that Article 3(2) of the Regulation limits the meaning of carriers to railway undertakings. Notably, the Guidelines confirm that where re-routing cannot take place due to severe disruption, the contractual liability to re-route the passenger by another means of transport lies with the railway undertaking with whom the contract was concluded. In relation to the concept of "delay", delays are defined as always referring to the delay of the passenger's journey and not to the delay of the train. Where a passenger travels on a single ticket of carriage for their journey, but uses several services (where one or more services are delayed), the delay in arrival will be determined on the basis of the actual time the passenger reaches his or her final destination.
Transport contracts, information and tickets
The Guidelines provide additional explanations in relation to the requirements of the Regulation as regards:
- the provision to service operators of real-time journey information by infrastructure managers
- the provision of travel information to passengers in alternative formats which are accessible to disabled persons in circumstances where such information cannot be provided via a computerised system
- the form and content of tickets and electronic transport cards
- the availability of tickets (the Guidelines recommend that operators offer at least the most essential tickets via all the sales channels they propose, inclusive of ticket offices, ticket machines and on board trains), and
- the carriage of bicycles
Liability, delays, missed connections and cancellations
The Guidelines provide additional explanation in relation to the requirements of the Regulation as regards:
- the scope of rail operators' liabilities and insurance coverage
- reimbursement, re-routing and compensation of the ticket price for multi-segment journeys in the event of delay to a passenger's journey
- a passenger's right to compensation in the event of delay to their journey arising as a result of "force majeure"
- the concept of "comparable transport conditions" where a journey is continued or re-routed
- a passenger's right to compensation in the event of delay for the rail element of their 'multimodal journey' (i.e. a journey involving more than one form of transport under one contract)
- a passenger's right to compensation in the event of cancellation of their journey
- the provision of meals, refreshments and accommodation (including the point of provision, quality, passenger obligations and proportionality of the assistance provided), and
- proof of delay (including certification of proof to be provided by the rail operator)
Rights of persons with disabilities and/or reduced mobility
A significant proportion of the Guidelines is dedicated to providing further information in relation to the rights of passengers with disabilities and/or reduced mobility under the Regulation, including confirming that:
- persons with disabilities and/or reduced mobility cannot be discriminated against when booking, purchasing or using rail transport services (unless justified in line with the non-discriminatory access rules under Article 19(1) if the Regulation), and that such right to access is not subject to the production by the passenger of a certificate and/or ID confirming their disability
- when requested rail operators, ticket vendors and tour operators must inform passengers about the accessibility of services and stations
- subject to the prior notification requirements set out in the Regulation: (i) the process for booking passenger assistance should be offered on a free of charge basis (for instance, by the use of a toll free booking line); (ii) passenger assistance should be available during all operating hours and not just during conventional working hours; and (iii) in the case of multiple journeys (i.e. journeys composed of different segments and recurrent journeys), one prior notification from the passenger as regards their requirement for assistance is sufficient, provided that adequate information is provided in relation to the timing of subsequent journeys, and
- best practice would require staff to be trained regularly and made aware of the varying needs of passengers with different types of disabilities and mobility restrictions
Complaints to railway undertakings
Under the Regulation passengers can submit complaints to any railway operator involved in a journey. The Guidelines note that passengers need to be informed of the time limits in respect of actions for damages.
Providing information to passengers about their rights
The Guidelines state that when providing passengers with information about their rights and obligations, the information must be adequate and provided before the conclusion of the contract of carriage. Further, the information has to be accessible to persons with disabilities and directly accessible to the passenger (i.e. at a station if that is where the ticket was purchased).
Enforcement and co-operation between national enforcement bodies and penalties
The Guidelines offer further explanatory detail and advice on best practices in relation to:
- handling of complaints by national bodies (including the recommended stage at which national enforcement bodies become involved and timescales for responding to complaints, and
- cooperation between national enforcement bodies when handling cross-border complaints and deciding on the national enforcement body (the Guidelines provide examples of best practice)
The Guidelines provide helpful clarification from the Commission in relation to the approach to be taken in respect of the application and enforcement of the Regulation across the EU.
It will be useful for relevant authorities and railway undertakings within Member States to familiarise themselves with the requirements of the Regulation (as clarified by the Guidelines), in the context of the fact that the exemption period for domestic rail journeys will be coming to an end in 2024.
To read the published Guidelines in full, please click here.