The EU has met obstacles in its bid to improve the rights of rail passengers
The European Union has had some success in recent decades as a champion of consumer rights. In particular, its efforts to strengthen the rights of air passengers have attracted favourable attention. But boosting the rights of rail passengers is proving more difficult.
Partly, that is because expectations are different. Although most European countries had a nationally owned flag-carrier airline, air travel has still had more of a private sector ethos than rail travel. Asserting the rights of air passengers as paying customers has not been a conceptual struggle, even if there have been arguments over how much compensation should be guaranteed under what circumstances. Expectations for rail passengers’ rights have been much lower. In most of Europe, rail travel was a publicly subsidised service run by state-owned companies.
The European Commission has been seeking to raise expectations, not just because it wants to champion consumer rights, but also because it wants to increase confidence in train travel, so as to encourage a shift from road and air travel to rail.
However, the EU’s remit is limited to rail journeys that cross national borders, which is only a small (and diminishing) proportion of all rail journeys.
Under EU rules dating from 2007, delayed rail passengers are entitled to percentages of the ticket fare – 25% if the train is between one and two hours late, 50% if the train is more than two hours late, and full fare for a cancelled train. The rules for air passengers have compensation levels set at €300, €400 or €600, depending on the length of delay and the distance of the flight.
Although the reimbursement principle is broadly the same for both modes of transport, the two pieces of legislation differ in one crucial respect – the ability to deny compensation in the event of extraordinary circumstances, or ‘acts of God’.
Until last year, the Commission assumed that rail companies could use the same ‘acts of God’ exemption that is available to planes, buses and ships. International conventions on rail enshrine the principle of ‘acts of God’ and say that force majeure offers grounds for limiting the liability of railway firms in case of delays.
However, the exemption for force majeure was not specifically included in the EU law on rail passenger rights, and the uncertainty resulted in a dispute between the Austrian rail company ÖBB and the Austrian rail regulator that was referred to the European Court of Justice.
The court ruled that the force majeure exemption did not apply and that EU law would need to be changed for such an exemption to exist, meaning that the Commission would have to propose a revision of the legal text.
There is little appetite for this given that the Commission, European Parliament and member states are currently in delicate negotiations over revising air passenger rights. The Commission fears that if the law on rail passenger rights is re-opened, MEPs might seize the opportunity to attempt a drastic strengthening of the law, against the wishes of the member states.
The International Rail Transport Committee, an association representing train companies and passenger organisations, has called on the Commission to change the law quickly “to ensure that railways compete with other transport modes on a level playing-field, including in the area of passenger rights”.
But a spokesperson for the Commission said this week that a proposal for revision will not be put forward during this Commission. It will be up to the next Commission to decide, based on how rail companies are being affected.
In the meantime, the Commission is enforcing the ECJ’s ruling: rail operators have to pay compensation even in the event of ‘acts of God’.
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