# EUR-Lex - 52013DC0587 - EN

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# 52013DC0587

**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/2013/0587 final */**

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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

1.           Introduction

1.1.        Background

The Regulation on Rail Passengers' Rights and
Obligations[1]
("the Regulation") was adopted on 23 October 2007 to ensure basic
protection to rail travellers throughout the European Union. It entered into
force on 3 December 2009 and applies to all rail passenger services (international,
domestic, regional, urban and suburban) within the EU provided by licensed
railway undertakings[2].
Member States may apply transitional periods and exemptions to certain
services. As most Member States have used this possibility, around 61% of all
national long distance services and 83% of regional and suburban services are
exempted.

Article 36 of the Regulation requires the
Commission to report to the European Parliament and to the Council on the
implementation and the results of the Regulation. This report thus fulfils the
requirement of this article.

It also provides elements regarding an adequate
coverage of railway undertakings' liabilities in case of accidents as required
by Article 12 of the Regulation.

A study from an external consultant[3] as well as information from
other sources, national authorities, the European Parliament and relevant
stakeholders[4]
have provided quantitative and qualitative input into this report.

1.2.        The Regulation

Railway undertakings have in general
implemented the Regulation relatively effectively. The available information
reveals that there was no systematic non-compliance or major ambiguities with
any provision of the Regulation making it impossible for Member States or operators to comply.

Moreover, passengers travelling by rail as a
part of a "package travel", benefit from supplementary protection
under the Package Travel Directive[5].

1.3.        The rail market

The implementation of the Regulation must be
seen in the context of the overall evolution and functioning of the rail
passenger market and in view of the policy objective set out in the White Paper
of 2011[6]
to achieve a greater modal share for rail. In 2010, rail accounted for only 7%
of inland passenger mobility in the EU. According to the 2012 Consumer Markets
Scoreboard, consumers rated rail services poorly[7].

The international rail market constitutes
merely 6% of all traffic in the EU. The domestic rail market competes with
other transport modes, notably air transport and cars.

Source: European
Commission Impact Assessment SWD(2013)10 accompanying the 4th
Railway package proposal on domestic market opening

To encourage innovation, efficiency and better
value for money the Commission, in its 4th railway package[8], is proposing to open the domestic
passenger market to new entrants and services from December 2019 which will
increase rail services.

2.           Assessment of compliance

The report assesses compliance with the
Regulation on the basis of the ten core passenger rights listed in the
Communication on Passenger Rights on all modes of transport[9]: non-discrimination, assistance
for persons with disabilities or reduced mobility, information, reimbursement,
rerouting or rebooking, assistance in case of disruption, compensation, liability
towards passengers and luggage, complaint handling, application and
enforcement. It also identifies areas where improvement or clarification is
needed and specifies the actions to be taken.

2.1.        Right to
Non-Discrimination in Access to Transport

2.1.1.     Based on nationality

Article 18 of the Treaty on the Functioning of
the European Union (TFEU) prohibits discrimination on grounds of nationality.
Price discounts for fares based on nationality thus represent an infringement
to EU law. Several railway undertakings offer discounts to certain groups of
passengers (e.g. disabled passengers, seniors, children). None of these
discounts openly discriminate on the grounds of nationality. Where they depend
on residence and are therefore not available to persons from other Member
States they can be considered as discriminatory.

2.1.2.     Based on disability and/or
reduced mobility

One of the
objectives of the Regulation is to allow disabled persons and persons with
reduced mobility equal opportunities for rail travel as other citizens. This
core principle is in line with the EU's obligations under the United Nations
Convention on the Rights of Persons with Disabilities (UNCRPD)[10]. Railway undertakings cannot
refuse carriage or impose accompanying persons unless this is necessary to
comply with non-discriminatory access rules (Article 19).

Refusals to accept reservations from
disabled persons and persons with reduced mobility have been very rare. This was also acknowledged by disability organisations. When this
happened, they were usually based on space limitations (e.g. limited wheelchair
spaces). Railway undertakings seem to have actively tried to find alternatives
where carriage was impossible. However in some cases wheelchair users had to
purchase first class tickets, which is clearly discriminatory if these are not
offered at a reduced fare.

2.2.        Right to Mobility:
Accessibility and Assistance for Passengers with Disabilities or Reduced
Mobility

To allow all
passengers equal access to transport, the Regulation places some obligations on
railway undertakings, station managers, ticket vendors and tour operators.

Railway undertakings or ticket vendors must
provide minimum pre-journey information as
per Annex II (i. a. on accessibility, access conditions and availability of
on-board facilities for disabled persons). Legislation on the technical
interoperability specifications for telematics applications (TAP TSI)[11] specifies the information
railway undertakings must provide on their websites. They generally comply with
these requirements although to varying degrees and often omit information on
the maximum size and weight of wheelchairs and on appropriate on-board
facilities.

Under Articles 22 and 23 railway undertakings
and station managers must provide free of charge assistance i. a. to embark and
disembark and on-board.

Article 24(a) specifies that assistance needs
must be notified 48 hours before travel. Many undertakings accept shorter
deadlines, but some apply longer deadlines or only allow pre-notifications on
working days. Methods for pre-notification are not always clear and sometimes
come with a cost (e.g. through toll numbers).

In general, assistance is provided even
where domestic services have been exempted from these articles. The Regulation obliges station managers to ensure assistance at
stations. In practice, the (main national) railway undertaking usually provides
assistance. In a future, fully liberalised environment the competent national
authorities must act to prevent competence problems between competing railways
and ensure provision of assistance.

The accessibility of infrastructure and rolling
stock according to Article 21 which makes reference to the PRM TSI[12] varies significantly between
Member States. Disability organisations consider inaccessible stations as main
barriers to travel for persons with disabilities. International and new entrant
services with newer and PRM TSI compliant rolling stock tend to be more
accessible than domestic and incumbent services.

2.3.        Right to information

2.3.1.     Information for passengers
before and during the journey

Under Article 8 railway undertakings and ticket
vendors must provide at least the pre-journey information specified in Annex II
to the Regulation (i.a. general contract conditions and information on fares
and journeys).

Overall, conditions of carriage seem to be
consistent with the Regulation, even if the
Regulation is not specifically mentioned.

Most railway undertakings provide information during
the journey (Article 8 and Annex II part 2), i. a. on on-board services, next
stops and on disruptions through on-board staff, vocal announcements or
screens. In its ruling of 22 November 2012 in case C-136/11, the EU Court of
Justice clarified that real-time information on delays or cancellations of
trains, which are main connecting services, must be given whichever railway
undertaking operates them. The infrastructure manager must inform railway
undertakings on connecting services operated by other undertakings[13].

According to Article 10, railway undertakings
shall make use of Computerised Information and Reservation System for Rail
Transport (CIRSRT) and adapt their IT-systems to TAP TSI to allow them to
exchange information.

2.3.2.     Ticket sales and
reservations

According to Article 9(1) railway undertakings
must offer through tickets[14]
and reservations where available. There are no incentives to provide through
tickets and practical or technological problems may restrict the offer of through
tickets for journeys with a combination of tickets, i.e. non-reservation
tickets, which can be used on all services, and integrated reservation tickets,
which are only valid on a specified service. As a result, the availability
of through tickets is currently limited.

In view of a future increase of rail services
after market opening with more interconnectivity among domestic services but
also between international and domestic services, efficient through ticketing
and network synergies are crucial, notably where Member States decide not
to set up integrated ticketing schemes.

2.4.        Right to renounce
travelling and reimbursement

In case of a delay on arrival of more than 60
minutes, passengers are entitled under Article 16 to choose between
reimbursement of the full ticket price or rerouting either at the earliest
opportunity or at a later date at the passengers' convenience. Overall, railway
undertakings comply with the requirement to provide reimbursement.

2.5.        Right to the fulfilment of
the transport contract in case of disruption

In case of service disruption, the option of
re-routing is not always offered. As in air
transport, many railway undertakings tend to interpret restrictively the notion
of "comparable transport conditions" in Article 16(b) and re-route
only on their own services but not on other services (notably high-speed
trains) or transport modes.

2.6.        Right to assistance

Article 18 requires railway undertakings to
provide assistance[15]
in case of delays of 60 minutes and more. More than 40 % of Member States have
exempted their domestic services which constitute more than 94 % of passenger rail
travel from this article.

Furthermore, some railway undertakings limit
the maximum amount for accommodation, others do not provide the required
refreshments and food on-board, claiming that this is too difficult to organise
when delays occur between stations. As a result, the implementation of the
right to assistance could be improved, notably through pro-active enforcement
activities from national authorities.

2.7.        Right to compensation

Under Article 17 passengers may request
compensation as a proportion of the ticket price in case of long delays or
cancellations.

Most railway undertakings comply with this
requirement. National legislation or carriers' customer policy may provide for
even more generous compensation.

The Regulation is not entirely clear whether
situations of 'force majeure' could exempt carriers from having to pay
compensation (but not from other obligations e.g. provision of assistance). In case
C-509/11[16]
pending at the EU Court of Justice, the Advocate General took the view that railway
undertakings may not exclude their obligation to pay compensation in case of
delay in arrival due to circumstances beyond their control. The decision from
the Court is still outstanding.

2.8.        Right to carrier liability
towards passengers and their baggage

2.8.1.     Liability for transport of
passengers and luggage

Article 11 of the Regulation specifies that
liability for passengers and luggage is regulated in the CIV[17] uniform rules in Annex I to
the Regulation. Carriers are liable for death or personal injury unless the
accident was caused by extraordinary circumstances or if it was the passenger's
or a third party's fault. In the last situation the carrier is liable but can
recover the expenses advanced to passengers. Damages are to be determined in
national law. The upper limit for compensation in the event of death or injury
is set at 175 000 units of account (ca. € 190 000)[18]. Most railway undertakings
stated liabilities for luggage which equalled or exceeded the limits defined in
the Regulation.

2.8.2.     Liability coverage

Article 12 of the
Regulation requires a railway undertaking to ‘be adequately insured or to make
equivalent arrangements for cover of its liabilities’. These requirements are
not very specific, and the Regulation does not define "adequate"
insurance. As a result, no minimum financial cover is specified. The Directive establishing
a Single European Railway Area[19],
requires that "a railway undertaking shall be adequately insured or have
adequate guarantees under market conditions for cover".

In order to be adequate, the level of coverage
needed depends on the railways' potential liabilities. The actual level of
liability, the scope of claims, and liability for injuries are defined in
national law. Most Member States have national provisions defining this
liability. Potential liability, and corresponding requirements for coverage,
will also depend on the income level of the State concerned. Although a low
level of coverage cannot qualify a railway undertaking per se as non-compliant,
coverage cannot be considered adequate if compensations for even a small number
of passengers would exceed this level. This seems to be the case for very few
railway undertakings only.

Most railway undertakings seem to have taken
out insurance to cover their liabilities and appear to be adequately covered.

2.8.3.     Mobility equipment

Article 25 prohibits railway undertakings to
limit the compensation in case of damaged mobility equipment of disabled
persons. Only very few railway undertakings do not comply with this
requirement.

2.9.        Right to quick and
accessible complaint handling

2.9.1.     Complaint handling

Under Article 27, railway undertakings must set
up complaint handling mechanisms and advise passengers how they can be contacted.
Passengers can complain to any competent railway undertaking (notably where
several railways were used in one connected journey) and must receive a
response within one to maximum three months. Railways' annual service quality
report must contain complaint statistics.

Railway undertakings in general provide
information on the complaint handling process. Most undertakings also respect the
prescribed timeframe.

The support study estimates that in 2011, NEBs
received approximately 2500 – 3500 complaints relating directly to the
Regulation. – this is less than 10 % of the yearly complaints received by NEBs
for air passenger rights.

2.9.2.     Service quality standards
and reports

Under Article 28 of the Regulation railway
undertakings must define service quality standards covering at least the issues
listed in Annex III to the Regulation. Annual reports on their service quality
performance must be published on their own and on the European Railway Agency's
(ERA) website.

The study found that, initially, railways'
compliance with this requirement was poor. The Commission developed guidelines[20] to facilitate the publication
of service quality reports and to help NEBs monitor compliance. The latest
publications on ERA's website show that the situation has considerably improved
since[21].

2.10.      Right to full application
and effective enforcement of EU law

2.10.1.   Exemptions

Under Article 2, Member States may partially
exempt services from the application of the Regulation without having to
justify this. Domestic rail services may be exempted for five years, renewable
twice, urban, suburban and regional rail passenger services for a non-specified
period. Journeys where a significant part is operated outside the EU may be
excluded for a renewable period of five years. As a result, long-distance domestic
services, which constitute half of the domestic rail market, can be exempted
for up to 15 years.

Although several Member States have opted
for extensive exemptions, these are often limited to regional and suburban
services or to specific articles, notably Article 18 (2) on assistance and care
in case of long delays, as undertakings perceive this article as rather onerous
and as an additional burden.

Most of the Member States bordering a third
country have granted exemptions for international rail services (Article 2(6)),
where possible. This has offered to the nine EU Member States[22], who are members of the Organisation
for Cooperation between Railways (OSJD), the necessary respite to ensure that
the future annex of the OSJD Convention[23]
will provide similar standards of
protection for international rail passengers.

2.10.2.   Implementation and
Enforcement

Article 30
requires Member States to designate an independent national body in charge of
the enforcement of the Regulation (NEB). Whilst most Member States have done
so, in some States the NEB is partially missing or not yet operational; others
failed to endow the NEB with effective enforcement powers. Some NEBs do not
seem to be sufficiently independent. Where the NEB is also the rail regulatory
body under Directive 2012/34/EU (previously Directive 2001/14/EC), its
independence was examined by the Commission. Where appropriate the Commission
has initiated infringement proceedings for lack of independence.

Article 32
requires Member States to provide for effective, proportionate and
dissuasive sanctions in case of non-compliance. Whilst most Member States
complied with this obligation some have not introduced any sanctions or
sanctions which only cover some articles. In some Member States only
conditional or restorative sanctions can be imposed, which are less likely to
induce compliance than punitive sanctions.

The level of
sanction varies significantly and cannot be considered as dissuasive where it
is below the cost of compliance. So far, very few sanctions were imposed.
Therefore, it is too early to assess whether the sanctioning procedures are
robust enough or whether there might be problems in collecting sanctions.

Despite the
obligation in Article 31 to cooperate, there has been little contact between
NEBs. Since only 6% of rail travel in the EU is international, the need for
cooperation to resolve complaints was limited.

2.10.3.   Private redress, alternative
dispute resolution and related national legal provisions

Most Member
States offer mechanisms for private redress, including alternative dispute
resolution (ADR) and small claims procedures. These are either free of charge
or at a very low cost for consumers. Where this is not possible, passengers
need to start legal procedures through civil courts. These remain complex and
are therefore likely to discourage passengers from pursuing their claims.

In several States national provisions to
protect rail passengers on domestic services even exceed the requirements of
the Regulation (e.g. through the licensing contracts for railway undertakings).
The Regulation does not prevent this as long as there is no conflict with those
provisions of the Regulation where no opt out is possible.

3.           Unclear or problematic
issues identified with the Regulation

The preceding assessment shows that there are
no major problems resulting in an impossibility to implement the Regulation.
However, clarification of some terms and articles could further improve its
application.

Some definitions are either missing (e.g.
"missed connection") or unclear (e.g. "ticket vendor",
"urban", "suburban" and "regional rail passenger
services") or inconsistent with definitions in other relevant legislations.
The concept of "force majeure" and conditions exempting undertakings
from having to pay compensation also needs to be clarified.

As regards Article 5 on the carriage of
bicycles, cyclists' representatives consider it too vague and that there is no
incentive to favour bicycle carriage.

Some concerns have also been voiced regarding
the consistency between the main text of the Regulation and its annexes,
notably Annex I.

4.           Conclusions

The overall application and enforcement of
the Regulation is satisfactory under the current
market situation, even if not all objectives of the Regulation have been
reached (i.a. an increased rail market share[24]).
Further market opening as proposed in the 4th railway package will, however,
require further efforts by railways and Member States to ensure appropriate
passenger protection. In particular, equal and transparent access to
pre-journey information, ticket availability and information about delays and
cancellations and ticket integration play an important role in ensuring
passengers can fully benefit from market opening. Consistent and active
enforcement by NEBs is important to ensure a level playing field for railway
undertakings.

According to NEBs and consumer organisations,
the railway industry generally shows a positive approach towards
implementation. No deliberate, severe or systematic non-compliance has been
detected.

Despite the overall positive picture certain Member States and railway undertakings need to take additional efforts to improve
application and enforcement.

A major issue inherent in the Regulation is
that it allows Member States to exempt the majority of their railway services
from most of its provisions.

The Commission considers the extensive use of
exemptions as a serious obstacle to the fulfilment of the Regulation's
objectives. The application of different regimes for domestic and intra-EU
international services is not consistent with the wider policy objective of a
single European Railway Area and creates barriers for operators who operate in several
Member States. In this context, the Commission underlines that only services
can be (partially) exempted from the Regulation[25], whereas journeys, notably
cross-border journeys, cannot, be exempted[26].

Furthermore, enforcement is lagging behind in
some Member States. Either there is no fully-fledged NEB, or the NEB is not fully empowered or not sufficiently independent. Some Member States still need
to define effective, appropriate and dissuasive sanctions.

Another issue of concern is the insufficient
cover for liabilities in case of accidents in two Member States.

5.           Follow-Up Actions

5.1.        Commission Action

· 
The Commission is currently assessing the
necessary actions for lack of NEB, lack of sufficient empowerment or lack of
effective sanctions. Based on obvious cases or where NEBs treat railway
undertakings differently , notably in more liberalised markets, the Commission
will also act on cases where it considers an NEB as not sufficiently
independent. As a first step, the Commission has launched ten pre-infringement
procedures against Member States who do not seem to comply with these
requirements or whose enforcement actions need to be enhanced on certain
issues, mainly in the following main areas:

· 
Failure of NEB to cover all articles of the
Regulation and lack of effective sanctions

· 
Insufficient cover for liabilities

· 
Failure to comply with the obligation to pay an
advance payment in case of death of a passenger

· 
Failure to provide adequate information to
passengers and lack of information on assistance and adequate pre-notification
tools for persons with disabilities

· 
Discrimination on various grounds

· 
Lack of assistance and care in case of
disruption

· 
Failure to offer financial compensation or
compensation for loss or damage of registered luggage or with regard to
mobility equipment

· 
Failure to re-route via other, comparable,
transport means

· 
Failure to publish service quality reports

· 
In the short term,
the Commission, in cooperation with Member States, rail industry and
stakeholders, will consider adopting interpretative guidelines to facilitate
and improve the application of the Regulation and to promote best practices.

· 
The Commission will encourage cooperation with
other modes to improve seamless intermodal transport.

· 
The Commission will liaise with the relevant
stakeholders to move forward with regard to integrated travel planning and
through ticketing.

· 
In the medium term, to strengthen the application of rail passenger rights
legislation, the Commission envisages to review Regulation 1371/2007, taking
into account the on-going revision of the Package Travel Directive, looking
into the following areas:

· 
Exemptions for domestic (long-distance) services
in order to align with the 4th railway package;

· 
"Force majeure": to align with
obligations under passenger rights legislation for other transport modes and in
view of the pending  ruling of the European Court of Justice in Case C 509/11 the
Commission will consider asserting that in such situations undertakings are not
obliged to pay compensation ;

· 
Clarification of unclear issues (e.g. regarding
undertakings' coverage for passenger liability to ensure a level playing field
for operators and legal certainty for passengers);

· 
Application of the UNCRPD: proposal of appropriate
amendments to the Regulation (e.g. definition of "disabled person or
person with reduced mobility", Article 21 on accessibility or Annex III);

· 
Awareness and assistance training for staff
dealing with disabled persons to align with passenger rights legislation for
other transport modes;

· 
Display of notices at railway stations, at
ticket vendors' premises and on-board trains informing passengers about their
rights under the Regulation to align with passenger rights legislation for
other transport modes.

5.2.        Enforcement by Member
States

· 
NEBs need to be more pro-active in enforcement,
e.g. to carry out more inspections, notably in cases of non-compliance. Adequate
resources must be ensured.

· 
NEBs must ensure that railway undertakings set
up quality standards and publish service quality reports. NEBs can easily check
compliance in these areas and can take action if necessary.

· 
As required under Article 31, NEBs need to
cooperate better among each other, not only to resolve cross-border issues but
also to exchange information and best practices.

· 
NEBs should actively raise passengers' awareness
of their rights.

· 
The Commission will continue to organise regular
meetings with NEBs to reach a mutual understanding on the practical aspects of
the implementation of the Regulation and to enable the NEBs to share their
experiences.

5.3.        Other

· 
The Commission will carry out awareness raising
measures and will invite NEBs, industry and other stakeholders to join the
Commission in its efforts and/or to launch similar activities.

[1]               OJ L 315, 3.12.2007, p. 14

[2]               As defined in Council Directive 95/18/EC of 19 June
1995 on the licensing of railway undertakings (OJ L 143, 27.6.1995, p. 70)

[3]               Steer Davies Gleeve (SDG):
http://ec.europa.eu/transport/themes/passengers/studies/doc/2012-07-evaluation-regulation-1371-2007.pdf

[4]               Rail industry, user and consumer associations

[5]               Council Directive 90/314/EEC of 13 June 1990 on
package travel, package holidays and package tours (OJ L 158, 23.6.1990, p. 59)
is being revised. A new proposal, COM(2013)512, was adopted on 9 July 2013.

[6]               COM(2011) 144 of 28/03/2011

[7]               http://ec.europa.eu/consumers/consumer_research/cms_en.htm

[8]               Proposal for a Regulation of the European Parliament
and of the Council amending Regulation (EC) No 1370/2007 concerning the opening
of the market for domestic passenger transport services by rail (COM(2013) 28
of 30/01/2013) and Proposal for a Directive of the European Parliament and of
the Council amending Directive 2012/34/EU of 21/11/2012 establishing a single
European railway area (COM(2013) 29 of 30/01/2013)

[9]               COM(2011) 898 of 19/12/2011. These rights are also
referred to in the EP report on passenger rights in all transport modes
(2012/2067 (INI)

[10]             Council Decision 2010/48/EC of 26 November 2009
concerning the conclusion, by the European Community, of the United Nations
Convention on the Right of Persons with disabilities (OJ L 23, 27.1.2010,
p.35).

[11]             Commission Regulation (EU) No. 454/2011 of 5 May 2011
on the technical specification on interoperability related to the subsystem ‘telematics
applications for passenger services’ of the trans-European rail system (OJ L
123, 12.5.2011, p. 11).

[12]             Commission Decision 2008/164/EC concerning the
technical specification of interoperability relating to persons with reduced
mobility in the trans-European conventional and high-speed rail system (OJ L
64, 7.3.2008, p. 72).

[13]             Westbahn Management GmbH v ÖBB-Infrastruktur AG

[14]             As defined in Article 3(10)

[15]             Meals, refreshments, overnight accommodation

[16]             ÖBB-Personenverkehr AG v Schienen-Control Kommission und
Bundesministerin für Verkehr, Innovation und Technologie

[17]             Contract for International Carriage of Passengers and
Luggage by Rail

[18]             Annex I, Article 30 (2)

[19]             Directive 2012/34/EU of the European Parliament and of
the Council of 21 November 2012 establishing a Single railway area (OJ L 343,
14.12.2012, p. 32)

[20]             Guidelines on "Rail Service Quality Standards and
Reports Publication Procedure and Contents" elaborated by the Commission
and sent to NEBs in March 2012.

[21]             https://eradis.era.europa.eu/interop_docs/ruSQPreports/default.aspx

[22]             Bulgaria, Czech Republic, Estonia,
Hungary, Latvia, Lithuania, Poland, Romania, Slovakia

[23]             This Annex, which regulates
international rail carriage of passengers and luggage , is currently under
discussion. Its scope overlaps with EU rail passenger rights rules.

[24]             Recital (1)

[25]             Article 2(1), (4) and (5)

[26]             Except as regards Article 2(6) where both services and
journeys can be exempted