[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 18.09.2006

COM(2006) 517 final

2004/0049 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the

common position of the Council on the adoption of a regulation of the European Parliament and of the Council on international rail passengers’ rights and obligations

2004/0049 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the

common position of the Council on the adoption of a regulation of the European Parliament and of the Council on international rail passengers’ rights and obligations

1- BACKGROUND

Date of transmission of the proposal to the EP and the Council (document COM(2004)143 final - 2004/0049(COD)): | 3 March 2004 |

Date of the opinion of the European Economic and Social Committee: | 9 February 2005 |

Date of the opinion of the European Parliament, first reading: A6 – 0123/2005 | 28 September 2005 |

Date of adoption of the common position: | 24 July 2006 |

2- OBJECTIVE OF THE COMMISSION PROPOSAL

The proposal for international rail passenger rights is one of the four measures proposed in the context of the third railway package (the other measures are intended to establish a certification system for train drivers, to improve the quality of rail freight services and to open up the market of the international transport of railway passenger s of 1.1.2010).

This proposal aims at establishing rights and obligations for passengers in order to improve the effectiveness and attractiveness of international rail passenger transport. It lays down provisions on the minimum requirements for information to be provided to passengers before, during and after their journey; contract conditions; the liability of railway undertakings in cases of accidents, liability and other consequences of delays or cancellations of services; the conditions under which persons with reduced mobility shall be assisted, quality standards as well as risk management and, finally, the conditions under which railway undertakings shall co-operate to achieve the aims of the Regulation.

To a large extent rail passenger rights build on existing systems of international law in the subject matter and in particular, on the Convention on International Carriage by Rail (COTIF/CIV) and on Community rules adopted for air passengers.

3- COMMENTS ON THE COMMON POSITION

The Council unanimously made some general changes relative to the Commission's proposal that are acceptable because they would ensure its aims were met.

First, the Council revises the structure of the regulation and clearly distinguishes eight chapters (I - General provisions, II - Transport contract, information and ticketing, III - Liability of railway undertakings for passengers and their luggage, IV - Delays, missed connections and cancellation, V – Persons with reduced mobility, VI – Security, complaints and quality of service, VII – Enforcement and VIII – Final provisions). The number of annexes is reduced from four to three, whereby Annex I and II of the Commission proposal are slightly adapted and merged in II, Annex II is incorporated into the text (delay compensation) and the provisions of COTIF/CIV relevant for chapters II, III and V become Annex I.

For a large part the Council confirmed the scope proposed by the Commission (“international journeys”, which are one or several rail services, of which at least one has to be international, undertaken under one transport contract), whereas the application of Chapter IV on delays is limited to international services and Chapter V on persons with reduced mobility has an extended scope covering also domestic journeys on international services. The Council thus adjusted the scope of the different chapters according to their respective needs.

Contrary to the Commission’s proposal, the Council, as well as the European Parliament, limit the duty of railway undertakings to provide tickets , through-tickets and respective travel information throughout the EU rail network, to the cases where such information or tickets are available to the rail operator receiving the request.

The Council and the European Parliament request however the establishment of a computer reservation and information system for rail journeys throughout the EU, which will help rendering access to information, tickets and reservations on international services more consumer friendly. The relevant legislative measure will be subject to a comitology procedure launched on a proposal to be elaborated with the assistance of the European railway agency.

In most aspects the Council, in line with a similar request from the European Parliament, replace the Commission’s proposal in relation to liability of railway undertakings for passengers or luggage in case of accidents and damage due to delay, missed connection or cancellation by the COTIF/CIV framework. Although such an approach will considerably limit passenger rights for damage compensation, the Commission can accept this modification. Once experience has been gained with the application of the present regulation the Commission may reconsider the issue. Unlike the European Parliament, the Council weakens the request for a minimum level of obligatory insurance cover for liability in case of accidents.

The Council proposes a simplification, based on a similar request by the European Parliament, of the framework originally proposed by the Commission for ad-hoc compensation and assistance in case of delay, missed-connection or cancellation , in order to allow its straightforward application to the advantage of passengers. The Commission agrees fully with this simplification .

In general terms, the Council is very supportive of rights of persons with reduced mobility . It attempts to extent their scope and renders their application more practical and foreseeable, while however limiting at the same time some of the duties on station managers and railway undertakings. In general the Commission agrees to the modification. It does however consider unfortunate one proposed modification concerning in Article 19(1) last sentence granting the station manager the possibility to limit the assistance already confirmed in case of purely commercial impediments . The European Parliament has tabled amendments going beyond the scope of this proposal, for ex. obligations intended to increase accessibility of railway rolling stock and stations, which will however be reflected in a future Technical Specification of Interoperability on Passengers with Reduced Mobility, an issue which the Commission will examine further.

Contrary to the European Parliament, the Council has confirmed obligations on the definition and monitoring of quality standards.

4- COMMISSION DETAILED COMMENTS

Out of the 122 amendments adopted by the Parliament in first reading, 63 were fully taken on board by the Council in its Common Position and 9 partially, of which the Commission had rejected 12 in full and 3 in part. The Common Position rejects 25 amendments fully and 4 in part, which the Commission had accepted. The Common Position did not take on board 26 amendments fully and 3 in part, which the Commission had also rejected.

The main amendment of the European Parliament concerned the extension of the scope to cover not only international journeys but also all national ones. Other important amendments proposed concerned the liability scheme, a review of the compensation levels and conditions proposed in case of delays or cancellations and, finally, a limitation of obligations on railway undertakings to offer tickets and transport information for all main services within the EU. The Commission reacted to the European Parliament’s opinion in first reading by accepting in full 19 amendments, in principle 49 thereof and partially 16. It rejected completely 38 amendments.

4 . 1 Amendments accepted by the Commission and incorporated in full or in part in the common position

The references below are to recitals and articles of the common position.

Part of amendment 3 and amendments 10, 23, 27, 44, 45, 46, 49, 50, 51, 52, 53, 54, 56, 57, 59, to some extent 64, 77, 78, 80, 81, 82 and 83, request the alignment of the liability regime governing railway undertakings to the international agreement COTIF/CIV (Vilnius protocol of 1999, which entered into force in 2006) or simply contain references to COTIF/CIV. The amendments to specific provisions may be considered redundant because Recitals 6 and 13, Article 10 (liability in relation to death and injury of passengers and damage of their luggage), Article 13 (liability in relation to delay, missed connection and cancellation) and in particular Annex 1 of the Common Position, in a simple and concise form, introduce the relevant provisions of COTIF/CIV on liability into the regulation.

Amendments 6 and 76 propose details in relation to the way assistance is offered to Persons with reduced mobility in case of delay. Article 16(5) of the Common Position confirms persons with reduced mobility’s right to particular attention for their needs when receiving assistance in case of delay. Details concerning the way such assistance shall be offered are mentioned in Recital 10 of the Common Position.

Amendment 18 proposes changes to the definition of “reservation” which the Common Position in Article 3(9) modifies even more radically.

Amendments 20, 61 and 120 propose a simplification to the compensation scheme establishing the refund of the ticket price in case of delay proposed by the Commission proposal. Article 15 of the Common Position takes over the principal structure proposed by the European Parliament while limiting possible refund to a maximum of 50% of the ticket price.

Amendment 24 on the deletion of a definition of working timetables has been followed by the Common Position.

Amendments 25, 36 and 42 relate to the organisation of the provision of information and ticketing as requested by the regulation and the possible use of a European Computer Information and Reservation System (CIRS). Article 9 of the Common Position incorporates the request to establish a CIRS and obliges the Commission, Member States and the European railway agency to cooperate in order to develop a Technical Specification of Interoperability as referred to in Directive 2001/16/EC on information and ticketing. The scope of the mentioned legal basis may need further considerations.

Amendments 32, 33 34, 35, 108 and, in part, 138 request the alignment of provisions on transport contracts and ticketing to the international agreement COTIF/CIV (Vilnius protocol of 1999, which entered into force in 2006) or simply contain references to COTIF/CIV. The amendments to specific provisions may be considered redundant because Recital 6 , Article 4 (provision on transport contracts) and in particular Annex 1 of the Common Position, in a simple and concise form, introduce the relevant provisions of COTIF/CIV on transport contracts and ticketing into the regulation.

Part of amendment 67, requests that passengers suffering a delay are promptly transported to their final destination. Article 14 of the Common Position incorporates this idea while going further by requesting railway undertakings to offer passengers “immediately” a choice between re-routing and reimbursement of the ticket price , etc.

Amendments 70, 71, 72 (the Commission has however not accepted the limitation of this obligation via the term "where possible") and 73 request passenger consent for consequential action by railway undertakings in case of re-routing and continuation of the journey due to delay and propose several clarifications in relation to ad hoc assistance to be offered in case of delay . Articles 14(1)c and 16(2) of the Common Position take account of these proposals.

Amendment 86 proposes limits to the assistance offered to Persons with reduced mobility in relation to the capacity available. Article 17 of the Common Position allows railway undertakings to establish beforehand non-discriminatory access rules for Persons with reduced mobility. The Common Position does however not foresee any obligation to increase capacity.

Amendments 87 and 126 make adjustments to the duties of station managers, railway undertakings including on board train staff as to the Persons with reduced mobility assistance to be provided. Articles 19, 20 and 21 of the Common Position render duties on the parties involved, and in particular railway undertakings and station managers clear, simple and realistic. Article 18 of the Common Position assures ticket sale to Persons with reduced mobility for no additional costs.

Amendment 92 simplifies the person with reduced mobility’s right to assistance in the absence of prior notification for it. For such cases Article 21 assures ad hoc assistance based on best effort.

Amendments 99 and 100 are being reflected in Article 23 of the Common Position by changing the term “security” to “ personal security ”.

Amendments 105 and 106 requesting to relief the burden put on railway undertakings in relation to complaint handling are transposed by Article 24 of the Common Position leaving within a justified framework most of the details on the complaint handling mechanism to be decided by the railway undertakings themselves.

First part of amendment 109 deletes the obligation to inform passengers of any plans on discontinuation or alteration of services . Article 6 of the Common Position changes the information obligation to refer to decisions instead of plans.

Amendments 114, part of amendement 115, 116 and 117 request adjustment to the minimum travel information offered to passengers by railway undertakings. Article 7 and Annex II clarify the contents of the minimum information on own services to be offered to the passenger.

4.2 Amendments accepted by the Commission and not incorporated in the Common Position

Amendments 5, 8, 9, 38 (partially, see also below), part of 67, 68, 79, 85, 90, 103 and 104, request the deletion of the term “international”. The Commission is of the view that the deletion of this term in the respective provisions does not prejudge the question of the scope of the regulation. The Common Position however having no intention to extend the scope of the regulation to all rail services, including domestic services, has in no way systematically deleted references to the term “international”.

Amendment 15 requests to clarify the definition of “ Railway undertaking” . This amendment may be considered redundant because the Common Position refers to existing Community legislation: Article 3, paragraph 1 defines “Railway undertaking” in line with Directive 2001/14/EC, Article 2 (Scope) refers to the definition in Directive 95/18/EC.

Amendments 21 and 22 request not to consider delays and expected delays due to cancellation, which have been announced to the passenger 48 hours in advance. The Common Position does not foresee any such provision. The definition of “delay” in Article 3(15) may be used to clarify this matter.

Amendment 30 requests to provide information in a format accessible to Persons with reduced mobility with visual or sensory impairments. The Common Position does not foresee any such provision. Article 7(3) of the Common Position is best suited for an according adaptation.

Amendment 38 requests sale of tickets in an accessible form . Although Article 8 of the Common Position on the availability of tickets does not reflect this idea, Recital (10) of the Common Position grants Persons with reduced mobility ’s right to obtain tickets on board a train without surcharges.

Amendments 43, 48, 55 and 98 on the titles and structure of the regulation are not being followed because the Common Position proposes a different structure (see structure of the regulation ).

Amendments 47 and 58 refuse or limit the right to advance payment in case of death or injury of the passenger. Article 12 of the Common Position however confirms this right, proposed by the Commission, which is also granted to air passengers.

Amendment 66 requests to apply the legal consequences in relation to the delay of rail services also when the provision of confirmed assistance to a person with reduced mobility is delayed . The Common Position does not foresee any such provision. Only in relation to delay related assistance the specific needs of persons with reduced mobility are separately mentioned.

Amendment 69 requests that re-routing or continuation of services may involve more expensive services at the same original price paid for the ticket. The Common Position does not foresee this possibility but refers “to comparable conditions”.

Amendment 75 requests that the railway undertaking certifies a delay endured by passengers. The Common Position does not foresee such a duty, which may easily be obtained by deleting “at the passenger’s request” from Article 16(4).

Second and third part of amendment 109 request railway undertaking, station managers, tour operators and the Commission to cooperate in order to offer information on the passenger rights enshrined in the regulation The Commission agrees in principal to inform passengers of their rights under the regulation in an appropriate form and refers to similar action undertaken in relation to passenger rights in the air sector (Air passenger rights poster).

Amendments 110, 111 and 112 on national enforcement bodies and on the publicity of information concerning these bodies are incorporated to a large extent in Article 26 and Annex II of the Common Position.

Part of amendment 124 increases the period by which ad hoc compensation in case of delay has to be paid to 1 month instead of 14 days. While the Commission had been flexible on this issue, the Common Position does not change the Commission proposal to pay compensation within 14 days after receipt of the complaint.

Part of amendment 138 requests an obligation on railway undertakings to carry bicycles. As the two legislators agree to submit the contents of a transport contract in principal to the COTIF/CIV rules on the subject matter, the obligation in relation to the transport of bicycles has been abandoned.

4.3 Amendments rejected by the Commission and not incorporated in the common position

Amendments 1, 2, part of amendment 3, 11, 12 (partially, see also below), 13, 17 (partially, see also below) and 62 (partially, see also below), intend to propose rights and obligations for railways passenger irrespective of the fact that they make a national or an international journey Thus European Parliament requests to enlarge the scope to all services, international as well as domestic , an amendment which the Commission appreciates but considers perhaps premature at this stage. Contrary to the European Parliament, Article 2, paragraphs 1 and 2 of the Common Position confirm (for general issues and liability of railway undertakings) or reduce (for consequences due to delays, etc.) the scope proposed by the Commission. Only in relation to persons with reduced mobility Article 2, paragraph 3 enlarges the scope to domestic voyages on international services.

Amendments 7 and 125 propose to oblige railway undertakings and station managers by this regulation to render rolling stock and stations accessible for persons with reduced mobility . The Commission considers that such an obligation goes beyond the scope of the present proposal.

Amendment 12 and part of amendment 39 referring to public service contracts are not considered relevant. International services (see also scope ) are rarely subject to public service contracts and therefore the Common Position does not particularly mention the term, without explicitly excluding from the scope of the regulation the obligation to apply passenger rights to public service contracts.

Amendment 16 proposes changes to the definition of “ main railway station ” a term no longer used by the regulation, which, in Article 19 of the Common Position, links the obligations of station managers in relation to assistance for persons with reduced mobility to “staffed railway stations”. The definition of “main railway station” therefore becomes obsolete.

Amendments 17 and 62 referring to season tickets are not considered relevant. Season tickets are hardly available for international services (see also scope ) and therefore the Common Position considers not necessary to particularly mention this term, without however explicitly excluding season tickets from the scope of the regulation.

Amendment 19 aligns the definition to COTIF/CIV. This amendment may be considered redundant: Article 3, paragraphs 11, 12, 13 and 14 of the Common Position clearly define international as well as domestic journeys and services, respectively , in a clear and concise manner without contradicting COTIF/CIV.

Amendment 26 proposes changes to the definition of “ persons with reduced mobility ”. In the meantime a definition is given by the Regulation of the European Parliament and of the Council concerning the rights of persons with reduced mobility when travelling by air (adopted on 8 June 2006, not yet published). This definition for “persons with reduced mobility” from aviation is taken over in Article 3(17) of the Common Position.

Amendment 31 requests that railway undertakings and tour operators (ticket vendors) are being held liable for inaccurate information . Nothing in the regulation prevents that principles of national private law apply to such cases.

Amendments 60, 118 and 119 are based on the request that passengers get surcharges refunded for service quality not obtained, other than delay of service. Rights related to this request are being considered excessive and therefore no such obligations were introduced into the Common Position.

Amendment 64, to a large extent, requests the deduction of a compensation of the ticket price (for poor service) from other compensation, like for example, damage compensation in case of liability for consequential damage. Contrary to that Article 15 of the Common Position confirms that the ad hoc compensation refunding the ticket price in case of delay, missed connection due to a delay or cancellation, is distinct from compensation of consequential damage governed by Article 13 of the Common Position, which refers to the COTIF/CIV provisions on the subject matter. The proposed deduction has therefore not been incorporated into the Common Position.

Amendment 65 proposes to oblige railway undertakings to avoid by all means delays . Such obligation is considered little precise and difficult to enforce.

Amendment 74 restricts ad hoc assistance for passengers on trains blocked outside stations to situations not involving exceptional circumstances. Although the situation may not have been caused by the railway undertaking it requests its intervention to the benefit of the passenger without any other alternative for assistance. The Common Position therefore rejects the European Parliament’s request but restricts assistance to those cases where it is physically possible.

Amendment 84 requests a clarification in relation to the railway undertakings right to claim, where relevant, compensation from the infrastructure manager. Nothing in the Common Position restricts in whatever form any right of recourse the railway undertaking may have against third parties. In addition, in principal the Common Position exonerates the railway undertaking’s liability in case of fault of third parties.

Amendments 101, 102, 107 and 121 propose the deletion of obligatory assessment of quality standards but introduce a rather heavy procedure involving the European Railway Agency. The Common Position proposes self-assessment of quality standards by the railway undertakings themselves while requesting at the same time strict conditions on how self-assessment has to be performed and rendered public. It considers not necessary at this stage to involve the European Railway Agency with monitoring of quality.

Amendment 127 requests training measures to better assist persons with reduced mobility. This proposal goes far beyond the scope of the present regulation. In the context of the third railway package, the Commission has however tabled a proposal for a Directive to improve train crews safety performance.

Amendment 128 makes adjustments to the duties of station managers in relation to contact points for persons with reduced mobility . Article 21 of the Common Position confirms this duty of the station manager as proposed by the Commission in its original text, while adding a reference to other public bodies likely to share the responsibility.

4.4 Amendments rejected by the Commission and incorporated in full or in part in the common position

Amendments 4, 14 and 37 request the weakening of the obligation the Commission proposed for railway undertakings to provide tickets, through-tickets and respective travel information throughout the EU rail network. The Commission was of the opinion that passengers have a right to purchase integrated tickets for journeys throughout the EU railway network and has therefore chosen to oblige railway undertakings to offer such a product as the railway market seems not respond voluntarily. Article 8 of the Common Position leaves the choice of offer to the railway undertakings by requesting that tickets, through-tickets and reservations shall be sold to passengers in so far as available. A European Computer Information and Reservation System (CIRS) for rail services shall further substantiate this demand (Article 9).

Amendments 28, 29 and part of amendment 115 request the weakening of the obligation the Commission proposed for railway undertakings to provide travel information . The Commission was of the opinion that passengers have a right to receive relevant travel information and also information beyond the railway undertakings own network for journeys throughout the EU. As voluntary arrangements do not always serve this purpose the Commission has chosen to oblige railway undertakings to offer EU wide travel information. Article 7 and Annex II clarify the contents of the minimum information on own services to be offered to the passenger. A European Computer Information and Reservation System (CIRS) for rail services shall further substantiate this demand (Article 9).

Part of amendment 39, amendments 40 and 123 propose modifications to the way tickets have to be sold . Article 8 of the Common Position gives a great flexibility to railway undertakings in order to choose the way best fitted for sales of tickets. On board sale shall be granted unless such service is restricted in justified cases. The Commission did not want to jeopardize more than necessary spontaneous purchase, including purchase on board of a train. It did not see a necessity to distinguish between selling points for public service tickets and other tickets.

Amendment 91, 95 96, 97 propose clarifications to the notification procedure concerning persons with reduced mobility for specific assistance. Article 21 of the Common Position simplifies this procedure and the conditions under which assistance is offered to a person with reduced mobility having notified need for assistance at the latest 48 hours in advance. The Commission did not want to reduce the rights of persons with reduced mobility unnecessarily and was therefore against the proposed increase in the prior notification period from 24 to 48 hours.

Amendment 113 requests 1 year whereas Article 33 of the Common Position grants 18 months implementation period before the regulation enters into force . The Commission considered a long transition period not necessary to implement the proposed rights to passenger.

Part of amendment 124 requests consent of the passenger to pay the compensation in vouchers, which is transposed by Article 15(2) last sentence of the Common Position.

5- CONCLUSION

While it would have preferred an obligation on railway undertakings to offer information on timetables and through-tickets throughout the European railway network as well as a higher commitment by station managers and railway undertakings in relation to the assistance offered to persons with reduced mobility, the Commission considers that the common position adopted unanimously on 24 July 2006 does not alter the aims and approach of its proposal.