EUROPEAN COMMISSION Brussels,21.11.2017 SWD(2017) 318 final/2 CORRIGENDUM



This document corrects document SWD(2017) 318 final of 27.9.2017



Missing annexes are added

The text shall read as follows: COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT

Accompanying the document Proposal for a Regulation from the European Parliament and the Council

on rail passengers' rights and obligations



(recast)



Table of Contents 1What is the problem and why is it a problem? 1.1Policy Context and Key Problems at Stake 1.2Description of the main problems linked to the current application of the rail passenger rights legislation (Part I) 1.2.1Major issues with the regulation 1.2.1.1Problems linked to the scope of the rail passenger rights legislation (Exemptions) 1.2.1.2Problems linked to the protection of passengers with disabilities or reduced mobility 1.2.1.3Information for passengers about their rights and passenger awareness 1.2.1.4Compensation and assistance to passengers in case of missed connections, delays or cancellations 1.2.1.5Enforcement: NEB complaint handling and cooperation 1.2.2Secondary issues with the regulation 1.2.2.1Discrimination on the basis of nationality, residence or currency 1.2.2.2Definitions 1.2.2.3CIV 1.2.2.4Assistance in case of major disruptions (contingency planning) 1.2.2.5Complaint handling by railway undertakings 1.3Description of the main problems linked to the issue of "force majeure" (Part II – see Figure I) 1.4How would the problem evolve, all things being equal? (Baseline)

1.4.1 Part I – problems linked to the current application of the rail passenger rights legislation 1.4.2 Part II –problems linked to the issue of "force majeure" 2Why should the EU act? 3What should be achieved? (PART I) 3.1General policy objective Specific objectives 3.2Interrelation with other EU policies 4What are the various options to achieve the objectives? (PART I) 4.1Methodology of the policy options construction (PART I) 4.2Retained regulatory policy measures Measures regarding the protection of passenger rights Discrimination on the basis of nationality, residence or currency 4.3Other (discarded) potential policy measures 4.4Policy options addressing the problems linked to the current application of the Regulation (Part I of the problem definition) Major issues Secondary issues 5What are the impacts of the different policy options and how do the options compare? (PART I) 5.1General methodological considerations Issues linked to the economic analysis 5.2Analysis of policy options

Measures to address major issues Policy scenarios to address issues linked to the scope of the rail passengers legislation (exemptions for all passengers) Policy scenarios to address issues linked to PRM rights Policy scenarios to address issues linked information provisions for all passengers Policy scenarios to address issues linked to the compensation and assistance to passengers in case of missed connections, delays or cancellations Policy scenarios to address issues linked to the complaint handling and enforcement (NEB complaint handling and cooperation) Measures to address secondary issues Policy scenario to address issues linked to discrimination on the basis of nationality, residence or currency Policy scenario to address issues linked to clarification of unclear definitions Policy scenario to address issues linked to uniform rules concerning the Contract for International Carriage of Passengers and Luggage by Rail (CIV) Policy scenario to address issues linked to contingency planning Policy scenario to address issues linked to right to redress Policy scenario to address issues linked to complaint handling for railway undertakings 5.3The preferred policy option 6problems linked to the issue of "force majeure" (Part ii) 6.1What should be achieved? General policy objective Specific objectives 6.2What are the various options to achieve the objectives? Retained policy measures addressing the problems linked to "force majeure"

Policy option/scenarios addressing the problems linked to the "force majeure" 6.3What are the impacts of the different policy options (scenarios) and how do they compare? General methodological considerations Issues linked to the economic analysis Analysis of policy scenarios addressing the problems linked to "force majeure" 7MONITORING AND EVALUATION Annex 1: Procedural information concerning the process to prepare the impact assessment report and the related initiative Evidence used in the impact assessment External expertise Annexe 2: Stakeholder consultation synopsis report PRM organisations Public Authorities Industry federations Infrastructure managers Annex 3: Stakeholders affected Annex 4: Impact Assessment Tool Methodology Introduction Policy measures assessed in the IA Tool Assessment of Impacts from Introduction of Measures Related to Informing Passengers (IN) (PM1-PM4) Assessment of Impacts from the Introduction of Exemptions (EX) (PM5-PM8)

Assessment of Impact from introduction of PRM Training Accessibility measure (PM13) Assessment of Impacts from introduction of a ‘Force Majeure’ clause (PM 26) Impacts and Metrics Passenger Demand Passenger Welfare Compensation and Cost of Assistance Payments Data Sources and Assumptions Passenger demand and mode share Split of demand by journey type Compensation Costs Data sources and input in the IA Tool Results of the Tool Baseline Scenario PART I – Problems linked to the current application of the Regulation Policy options to address issues linked to the scope of the rail passengers legislation (exemptions for all passengers) Policy scenario A Policy scenario B Policy scenario C Policy options to address issues linked to PRM rights PRM rights are applicable on all services

Information provisions for PRMs Sensitivity Analysis Assistance for PRMs at the stations and on board trains Information provisions for all passengers Sensitivity Analysis (policy scenario on information and policy scenario A for exemptions for all passengers) Sensitivity Analysis (policy scenario on information and preferred policy scenario B for exemptions for all passengers) Sensitivity Analysis (policy scenario on information and policy scenario C for exemptions for all passengers) PART II - Policy options addressing the problems linked to "force majeure" Narrow definition of "force majeure" Sensitivity Analysis (policy scenario A on "force majeure" and preferred policy options) Broad definition of "force majeure" situations Sensitivity Analysis (policy scenario b on "force majeure" and preferred policy options) Annex 5: Complementary information



1What is the problem and why is it a problem? 1.1Policy Context and Key Problems at Stake Policy Context A Deeper and Fairer Internal Market where consumer interests and social policy are at the core of the single market is one of the ten policy priorities of the Commission. The Commission adopted passenger rights legislation for all modes of transport (air, rail, waterborne and bus and coach) between 2004 and 2011. This legislation ensures minimum protection for passengers in the EU, including persons with reduced mobility, when the journey is not carried out as scheduled and provides for rules on liability in the event of accidents. The Regulations establish ten basic core passenger rights: (1) non-discrimination in access to transport; (2) assistance at no additional cost for persons with disabilities or reduced mobility; (3) information before purchase and at the various stages of travel, notably in case of transport disruption; (4) right to renounce travelling when the trip is not carried out as planned by the carrier; (5) fulfilment of the transport contract in the event of transport disruption; (6) assistance in situations of long delay at departure or at connecting points; (7) financial compensation under certain circumstances; (8) carrier liability towards passengers and their baggage; (9) an effective system of complaint handling; and (10) full application and effective enforcement of EU law. Regulation (EC) No 1371/2007 on rail passengers' rights and obligations(the Regulation) is part of this comprehensive set of passenger rights legislation. It has been applicable since December 2009 and, as part of the "third railway package" of 2007, it aims to improve the attractiveness of rail passenger transport and its market functioning. It ensures a minimum level of protection for all rail passengers across the EU, including specific rights for persons with disabilities or reduced mobility (PRMs) thus enhancing the social inclusion of PRMs. It also promotes a more level playing field for rail operators in the EU with regard to passenger protection. The Regulation establishes the liability of railway undertakings towards passengers (including PRMs) and their luggage while using rail services. This is the case, in particular, with regard to information, contracting, assistance and financial compensation to passengers in the event of long delay(s) or missed connection(s). It lays down provisions on service quality standards, the handling of complaints and general rules on enforcement. Under the Regulation, Member States have to designate national enforcement bodies (NEBs) who have to ensure that the rights of passengers are respected. Passengers may complain to these bodies about alleged infringements of the Regulation. NEBs have to cooperate and exchange information to coordinate their tasks across the EU. Member States also have to set up rules for effective, proportionate and dissuasive penalties for infringements of the Regulation.

The Regulation builds on the existing system of international law contained in Appendix A, "Uniform rules concerning the Contract for International Carriage of Passengers and Luggage by Rail (CIV)" to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as modified by the Protocol for the modification of the Convention concerning International Carriage by Rail of 3 June 1999 (1999 Protocol). COTIF applies in Europe, the Maghreb and the Middle East. A significant part of these CIV Uniform Rules is reproduced in Annex I to the Regulation. As a consequence, the Regulation extends the scope of this Convention, which makes reference only to international railway services, to domestic rail passengers' transport services. Basically, the general rules and passengers' rights and obligation which are contained in the CIV Uniform Rules (CIV UR) of the COTIF Convention and which form the object of such extension relate to the transport contract, conditions and liability for the transport of luggage and vehicles, liability in case of accidents, cancellations, delays and missed connections and relations between carriers. Annex I applies subject to the rules in main provisions of the Regulation. The Regulation applies to all rail journeys and services throughout the EU provided by railway undertakings licensed under Directive 95/18/EC (i.e. it does not apply to "light rail" such as trams or metros). Also journeys covered under the new directive on package travel and linked travel arrangements are covered. However, the Regulation allows Member States to grant a number of exemptions from the application of most provisions of the Regulation to certain services. Exemptions include temporary exemptions for long distance domestic services (for a period of up to 15 years, i.e. until 2024), unlimited exemptions for urban, suburban and regional services as well as exemptions for services of which a significant part, including at least one scheduled stop, is operated outside the EU. Member States have taken broad advantage of this possibility to grant exemptions, and currently only five apply the Regulation in full. All other Member States have granted exemptions to a different extent to their domestic services which leads to a patchwork of application across the EU. The Court of Justice of the European Union has so far been called upon three times to interpret the Regulation. The ruling in Case C-509/11 of 2013, has created a certain confusion among stakeholders since, as a consequence, railway undertakings have to pay compensation to passengers also in the event of "force majeure", i.e. where they were not responsible for delays and could neither foresee nor prevent them. Before the ruling, all stakeholders and notably railway undertakings, Member States and the Commission had understood the Regulation as containing a "force majeure" clause, exempting railway undertakings from having to pay compensation when a delay of more than one hour was caused by a "force majeure" event and could not have been foreseen or prevented. The reference in Article 15 of the Regulation to the liability chapter in the CIV Uniform Rules in Annex I to the Regulation was thus understood to "import" the "force majeure" clause contained in Article 32 of the CIV into the Regulation, so that railway undertakings' liability to pay compensation would equally be covered by that clause. Recital 14 of the Regulation explicitly mentions that compensation for delays (Article 17) "is linked to the liability of a railway undertaking" on the basis of the CIV. This entails that imposing on railway undertakings the obligation to pay compensation (in addition to rerouting or reimbursement and assistance) would only apply in the event that the delay or cancellation cannot be attributed to those "circumstances not connected with the operation of the railway" mentioned in Article 32 of Annex I. The Court came to the conclusion, that the provisions mentioned by Article 32 of Annex I are not of the same nature as those mentioned in Article 17 of the Regulation and that "nothing in Regulation No 1371/2007 provides that railway undertakings are exempt from the obligation to pay compensation laid down in Article 17(1) of that regulation where the delay is attributable to force majeure". Indeed Article 32 refers to "loss or damage" due to cancellation or delay. This notion differs from the "compensation" for delay offered by the Regulation in chapter IV, which the Court qualified as a "fixed rate standard form of compensation" for a contract not carried out as scheduled. The Court considered therefore that the rights to compensation under the regulation complement and go beyond those in the CIV and were thus deliberately not meant to be covered by the exemption in Article 32. This distinguishes rail transport from air and waterborne transport, where carriers can be exempted from paying compensation under certain circumstances. In bus and coach transport, there is no obligation for operators to pay compensation in the event of delays at arrival, and carriers can even invoke a "force majeure" clause to be exempt from providing assistance (i.e. no accommodation has to be provided). It should be noted that there is currently no uniform harmonised definition of "force majeure" in the EU, and a variety of definitions exist across the EU (in both EU and national law). For the purpose of this impact assessment, we will therefore look at two different definitions of the concept of "force majeure" and what it encompasses. A detailed description of the issue and the impact of different definitions is presented further in the report (see section on the problem definition, definition of options and analysis of effects below). Apart from the provisions of the Regulation, the UN Convention on the Rights of Persons with Disabilities (UNCRPD) calls inter alia for the accessibility of transport services for persons with disabilities. Accessibility is at the heart of the UNCRPD to which the EU and the Member States are parties. It requires them to take the necessary measures, including adopting legislation, to ensure accessibility and personal mobility. In line with Article 9 of the UNCRPD, accessibility in the context of transport means the prevention or removal of barriers so that persons with disabilities or reduced mobility may use the service and all related facilities, including information, on an equal basis with other useres, i.e. independently and without having to rely on other persons. Apart from some accessible information, the Regulation does not contain detailed provisions on accessibility but refers to the technical specifications for interoperability relating to accessibility of the Union's rail system for persons with disabilities and persons with reduced mobility (PRM TSI). The PRM TSI will ensure progressive accessibility of rail transport infrastructure and vehicles. The Commission has also recently proposed the European Accessibility Act (EAA) which contains accessibility provisions for transport services. The EAA will complement and add to the provisions of the PRM TSI, which itself is currently being revised. The EAA proposal is currently being discussed in the Council and the European Parliament. Its impact on rail transport services will depend on the outcome of these discussions. In August 2013, the European Commission adopted a Report on the application of the Regulation which included the findings of an ex-post evaluation study. In 2015, the Commission adopted a Report on exemptions which identified the extensive use of exemptions as a major hindrance to the uniform application of the Regulation. To address the shortcomings identified, the European Commission launched an impact assessment process in February 2016 the results of which are presented in this report. The application 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 to achieve a greater modal share for rail. This objective is recalled in the recently adopted 4th railway package which mentions the Regulation notably in connection with through ticketing and contingency planning. In 2010, rail accounted for only 7% of inland passenger mobility in the EU. According to the 2016 Consumer Markets Scoreboard, consumers rated rail services poorly (even though the situation has been improving), and there is a wide divergence in how the market performs in different countries. As regards developments on passenger rights in other transport modes, a proposal for a revision of the Regulation on air passenger rights has been been tabled by the Commission in 2013. Negotiations in the Council are currently halted because of the Gibraltar issue between Spain and the UK. Further to the numerous rulings of the EU Court of Justice on air passenger rights, the Commission proposal aims at ensuring a fairer balance of interests between passenger rights and the economic burden on air carriers of these rights. The international rail market constitutes merely 6% of all rail traffic in the EU. The domestic long-distance rail segment represents 48% of all rail traffic in the EU while regional traffic represents 27% and suburban traffic 19%. While there is a certain degree of competition between rail and other transport modes on certain specific routes and over certain distances, notably air transport and bus and coach transport, the data available does not allow the conclusion that the issue of competition of rail with other modes is significant at a global level. Key problems at stake and their causes The ex-post evaluation and the Commission's own reports have shown that the Regulation has had an overall positive effect on increasing the protection of rail passengers. Railway undertakings have in general applied the Regulation relatively effectively. 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. However, the evaluation identified two major problem areas related to the application of the current Regulation, which affect the main stakeholders groups and which are analysed in this impact assessment. One problem area relates to passengers (including PRMs) and their rights, the other to the burden on railway undertakings: 1.Firstly, passengers cannot always fully enjoy their rights under the Regulation when using rail services. Most of the issues described under this problem area apply to all passengers. However, a number of issues concern mainly PRM passengers. Where relevant the report will address these elements separately. 2.The second major problem area concerns the burden on railway undertakings due to the inconsistent application of the Regulation. . These two areas both relate to the current application of the Regulation and will constitute the first main part of this impact assessment. Another important element which will be treated separately in this impact assessment report is linked to the fact that rail operators cannot be exempted from having to pay compensation even where delays were caused by "force majeure" and could not be foreseen or prevented. This problem could in principle be treated together with the issues concerning the burden on railway undertakings. However, the insufficient quantitative evidence as to the economic scale of this problem led us to separate this issue from the other issues in this impact assessment. Because of the high interest of the “force majeure” issue for Member States and stakeholders, the issue will be analysed nevertheless, although separately. Therefore, the report will be based on the following structure: i) Part I – problems related to the current application of the Regulation and

ii) Part II – problems related to the issue of "force majeure" (See problem diagram on Figure 1). Part I – problems linked to the current application of the rail passenger rights legislation The analysis performed by the Commission in the preparation of this impact assessment identified a number of separate and independent issues. Moreover, a number of problem-drivers identified only have limited effects. Therefore, this impact assessment report applies a hierarchy to the problems (i.e. major and secondary problems) which is justified by their greater or lesser impact on stakeholders. The major problems are therefore related to: ·Issues linked to the scope of the rail passenger rights legislation (Exemptions); ·PRM rights; ·Information provisions; ·Compensation and assistance to passengers in case of missed connections, delays or cancellations (notably the issue of through ticketing); ·Complaint handling and enforcement. All of these problems mainly affect the rights of passengers using rail services. There are a number of "secondary" issues with the Regulation, which, although they have a certain impact on stakeholders, are not directly linked to the abovementioned problems. They can be divided according to the main stakeholders affected. As regards passengers they relate mainly to: ·Discrimination on the basis of nationality, residence or currency; ·Certain unclear definitions (e.g. missed connection, comparable transport conditions); ·Potential inconsistencies of the Regulation and the CIV UR reproduced in Annex I to the Regulation. Secondary issues relating to the economic and administrative burden on rail companies concern: ·Railway undertakings' sole responsibilities in case of major disruptions; ·Long delay or cancellation caused by a third party; ·The fact that railway undertakings currently have to keep incident data for an unlimited period of time. Part II – The problems linked to the issue of "force majeure" are dealt with as a separate topic.

Source: compilation by DG MOVE 1.2Description of the main problems linked to the current application of the rail passenger rights legislation (Part I) 1.2.1Major issues with the regulation (Protection of all passengers (including PRMs) – see Figure I) 1.2.1.1Problems linked to the scope of the rail passenger rights legislation (Exemptions) The Regulation allows Member States to exempt certain domestic rail services from the full application of its requirements. This possibility was granted, on the one hand, to allow Member States experiencing difficulties to apply the Regulation in full from the entry into force to adapt their domestic services progressively and, on the other hand, to take account of the specific character of urban, suburban and regional passenger services. Only certain articles such as the availability of tickets, the liability of railway undertaking in respect of passengers and their luggage, the provisions on insurance, the responsibilities of railway undertakings and station managers to grant PRMs access to rail transport services and the information about the accessibility of the service to PRMs and the personal security of passengers cannot be exempted and apply to all services. However, Member States may exempt from all or part of the other provisions: ·long-distance national services for a limited period of time (five years, renewable twice, i.e. for a maximum of 15 years, i.e. until 2024); ·urban, suburban and regional services for an unlimited period of time; ·particular services or journeys where a significant part of the service or journey is carried out outside the Union for a maximum period of five years which can be renewed. The Regulation does not specify how often this may be done. Despite the initial purpose of exemptions to allow a progressive "phasing-in", Member States have made extensive use of exemptions with the negative consequence that rail passengers travelling on domestic services cannot fully benefit from most of the provisions under the Regulation and may be insufficiently protected depending on where they travel. In theory this problem could potentially be mitigated if the Member States which grant exemptions had equivalent or more generous national provisions on compensation or assistance in place. However, as is shown in table A3 of Annex 5, only in the UK do exemptions for the compensation not have a significant impact on passengers' rights, as franchise contractual commitments provide for more generous compensation than that of the Regulation. Therefore, a significant number of passengers' journeys (in terms of passenger km or pkm) are exempted, and thus an important number of passengers do not benefit from the rights under the Regulation. For instance, for domestic long distance services, 11 Member States apply exemptions for compensation, and the same 11 Member States apply exemptions related to one or more articles related to assistance. For urban, suburban and regional services, 15 Member States apply exemptions related to compensation, 12 apply exemptions to the right to information and 16 to the right to meals and refreshments in the event of long delay. For services with third countries, 8 Member States apply exemptions related to compensation, 7apply exemptions to the right to information and 8 to meals and refreshments. As a result 21,4% of pkm do not benefit from the provision related to the right to compensation, 17,1% of pkm do not benefit from the requirement to inform passengers in case of disruption and 44,6 % of pkm do not benefit from the right to meals and refreshments. In all these cases Member States do not have equivalent or more generous national provisions in place. The ex-post evaluation carried out by the external consultant found out that the extensive use of exemptions hindered the overall achievement of the main objective of the Regulation, i.e. the protection of rail passengers. Moreover, the Commission's Application Report (2013) notes that “[t]he 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.” Indeed, extensive exemptions in regions where urban, suburban or regional services operate across borders also lead to legal uncertainty and lack of transparency for commuters. This is mainly the case in the border regions of Germany, France, Belgium and Luxemburg. If a train is delayed by more than 60 minutes, passengers always have to check national rules to see whether or not they are entitled to compensation or assistance, depending on the country in which they are travelling. This leads, combined with imperfect knowledge of their rights by passengers and divergences in the provision of information, to a low probability that passengers assert their rights to compensation. While exemptions for urban, suburban and regional services can be granted, in principle, for an unlimited period of time, renewals for exemptions for long distance domestic services and services with third countries have to be made every 5 years. As regards long distance domestic services, renewals are limited to two (15 years in total from the entry into force of the Regulation). For services with third countries, the Regulation does not specify the number of renewals. Consultations with Member States in the course of this impact assessment reveal that there are no intentions to reduce the current exemption regimes. This conflicts with the objective of the Regulation to provide a high level of passenger protection. Furthermore as emphasised in the EC Interpretative Guidelines: “temporary exemptions for long-distance services may be introduced with a view to allowing a period of ‘phasing-in’, in order to help railway undertakings that may have difficulties in implementing all of the provisions by the date of the Regulation’s entry into force.” In connection with Recital 25 of the Regulation this indicates that exemptions for long distance services are not meant to be permanent and should only be used to overcome temporary difficulties to apply the Regulation in full. The same applies to services or journeys of which a significant part is carried out outside the EU. As Article 26 indicates a clear maximum period of five years (albeit renewable) granting exemptions should allow Member States to adapt their relations with third countries (e.g. to adjust their bilateral agreements) with the aim to apply the Regulation in full on the part carried out on the EU territory. The Regulation does not mention cross-border intra- EU services explicitly, but it openly refers to the domestic nature of services which can be exempted (apart from those with third countries, but there the Regulation would only apply on the services carried out on the EU territory). Conversely, where Member States exempt cross-border EU services which are suburban or regional services the rights of commuters in cross-border regions are significantly reduced, as is their legal certainty about which rights apply. 1.2.1.2Problems linked to the protection of passengers with disabilities or reduced mobility

Persons with disabilities or reduced mobility (PRM) have the same rights to use rail transport as other passengers. The Regulation provides for non-discriminatory access conditions for PRM passengers and imposes obligations on railway undertakings and station managers to enable PRM passengers to use rail services. However, various sources, including passenger complaints (see further sub-sections), show that PRMs may not always fully exercise their rights while using rail services. The main problematic areas are described below. It is important to note though that several assumptions had to be made to assess the scale of these problems. Currently, there is no data available at European level on the amount of rail travel that PRMs undertake. However, according to the World Report on Disability (2012), approximately 16.6% (1 in 6) of the EU population has some form of disability. Also, the impact assessment on PRM-TSI estimates PRMs as 15.7% of the working age population. It results that if the overall travelling patterns of PRMs are similar to those of all citizens, around 67 billion pkm on a yearly basis could be associated to PRMs. A) Applicability of PRM rights to all services In addition to the general set of exemptions discussed above concerning all passengers, the Regulation allows Member States to exempt domestic services from the application of a number of provisions intended to PRMs to enable them to use transport as other passengers. This is possible simply because apart from the "right to transport" and certain information requirements, the articles containing these provisions are not among the list of mandatory provisions. The rights enshrined in these articles concern notably the assistance in stations and on-board trains and the compensation for lost or damaged mobility equipment. The duration of these exemptions is linked to the general duration of exemptions granted by Member States and depends on the nature of the service (long distance; urban, suburban or regional; or service with a third country). In some cases, exemptions do not impact the rights of PRMs as, prima facie, some national legislation appears to meet the standards of the Regulation. Table A3 in Annex 5 shows the proportion of PRM pkm that are exempted for each of the requirements, as well as the proportion of services that are exempted and for which there are no equivalent domestic provisions. At present, services carrying between 12.8% and 30.1% of EU pkm are subject to exemptions, and do not meet the requirements related to PRM accessibility, assistance and compensation for mobility equipment. By allowing Member States to exempt services from the application of these articles, the Regulation further reduces the rights of PRMs as well as their opportunities to use rail services. This is contrary to the objectives of the UNCRPD as well as to the European Disability Strategy 2010-2020. B) Accessible information for PRMs (travel information and information about their rights as passengers) As regards travel information, railway undertakings and/or ticket vendors shall inform passengers pre-journey at least about general contract conditions, time schedules and conditions for the fastest trip and lowest fares, accessibility, access conditions and PRM facilities on board, conditions for bicycles, availability of seats, any activities likely to disrupt or delay services, on-board services, procedures for reclaiming lost luggage and for submitting complaints. During the journey information must be provided at least about on-board services, next stations, delays, main connecting services and security and safety issues. When providing this information, the Regulation requires that particular attention be paid "to the needs of people with auditory and/or visual impairments". While this provision ensures that journey information is accessible to at least a certain proportion of PRMs, other categories of persons with disabilities are not covered (such as persons with cognitive impairments or dementia), and these persons may not be adequately informed, in particular during their journey, at connection points or when the trip is not carried out as planned. Moreover, no specific requirements exist regarding the accessibility to PRMs of the information to passengers about their rights and obligations under the Regulation (i.e. the rights to transport, assistance, compensation, complaint handling etc.). As a result, this information is often not accessible to persons with different kinds of disabilities who may thus not be adequately informed about their rights as passengers when travelling by rail. In the course of the consultations made for this Impact Assessment, the European Disability Forum (EDF) complained for instance about the lack of accessible information about passenger rights. While general issues regarding passenger awareness (which also affect PRMs) will be discussed below in section 1.2.1.3., with regard to PRMs, there is an additional indicator for awareness, which is the number of requests for assistance which PRMs may make to railway undertakings, station managers, ticket vendors or tour operators at least 48 hours before the journey. Based on the assumption that the travelling patterns of PRMs are similar to those of all citizens, it was possible to calculate this figure for a number of Member States. The proportion of PRMs making rail journeys range from 0.02% in Slovakia to 0.67% in Spain. The proportions of journeys that include requests for assistance are low (in all cases much less than 1%). These low figures reflect the information provided by a Eurobarometer survey on passenger rights of 2014 . According to the survey results, only 3% of citizens in the EU have ever asked for assistance during a journey by train (national or international). Although these figures should be treated with care, as a PRMs decision to request assistance might depend on other factors, it can still provide an indication on the level of passengers' awareness (in particular in combination with information on overall levels of information provided in section 1.2.1.3). This low awareness could also be due to the fact that the information about the right to assistance is not available in accessible formats. C) Staff training The Regulation is not fully aligned with the UNCRPD which requires States Parties to take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by facilitating the personal mobility of persons with disabilities. The Regulation requires railway undertakings and station managers to provide assistance to PRMs, subject to pre-notification of 48 hours, at railway stations and on board trains. If no notification is made, railway undertakings and station managers have to "make reasonable efforts" to provide assistance so that the passenger can take the train. EDF pointed out that assistance to PRM passengers was not always available in spite of pre-notifications and that it was not always appropriate to the needs of the person. Moreover, according to EDF, assistance is not always available at all times that trains run, as opposed to within a restricted time frame. While there is no specific reference in the Regulation to such a requirement, Article 24(a) states that “assistance shall be provided on condition that [notification is given] at least 48 hours before the assistance is needed". Even if EDF only provided anecdotal evidence, such situations can and will occur more often. This means that rail travel for PRMs is not always as easy and smooth as it should be. In order to improve the provision of assistance and thus the travel experience of PRM passengers, the Interpretative Guidelines recommend that rail staff receive disability awareness training at regular intervals to provide effective and adequate assistance to PRMs. However, there is no obligation. As a consequence, where rail staff is not thoroughly trained, the assistance provided to PRMs might be inadequate or completely lacking, thus inhibiting a smooth travel experience. Trained staff at stations and on board, as required under passenger rights legislation for all other modes of transport, would be in a good position to provide proper assistance. This would help ensure that PRM passengers have the same opportunities to use rail services as other passengers. D) Provisions on complaint handling for PRMs The evaluation report highlighted that missing rules for complaint handling by actors other than railway undertakings (e.g. station managers) may impede passengers' access to redress. The Regulation requires station managers to provide assistance to PRMs on departure from, transit through or arrival at, a staffed railway station so that the person can board the departing service, or disembark from the arriving service. Despite this requirement, station managers have no obligations (similar to requirements on railway undertakings), to handle complaints or to publish service quality reports. This was not a problem when most rail stations were owned by the railway undertakings, who handled the complaints about infringement of the Regulation by the stations. However, nowadays, in a lot of Member States railway undertakings are separated from the station manager. As pointed out inter alia by EDF, there is currently no process for PRMs to complain directly to the station manager (such as to airports in the air passenger rights legislation). As railway undertakings do not usually handle complaints about problems at stations, PRM passengers currently have to address their complaints directly to the NEBs, which in turn have to contact the rail stations. Problems, which could be solved relatively easily directly between the stations and the passengers, have to go through an additional administrative layer. This prolongs the solution of problems and increases the work of national administrations.

1.2.1.3Information for passengers about their rights and passenger awareness Railway undertakings, station managers and tour operators must inform rail passengers about their rights as passengers under the Regulation notably when the journey is not carried out as planned (rights to information, assistance, compenstion etc.). Railway undertakings and ticket vendors must provide at least the minimum information specified in Annex II to the Regulation. Pre-journey information relates to general conditions, time schedules, PRM accessibility, conditions for bicycles, complaint procedures etc. Information during the journey must cover at least on-board services, next stations, delays, main connecting services and security and safety issues (see also PRM section 1.2.1.2 on information above) . However, the level of passenger awareness and information provided is not always sufficient, which was highlighted in a Special Eurobarometer survey on passenger rights of 2014. This Special Eurobarometer survey was conducted in a view to measure awareness of passenger rights in 28 Member States, distinguishing between different transport modes (air, rail, waterborne and long-distance coach). It was conducted at the EU level. Some 28050 respondents from different social and demographic groups were interviewed face-to-face at home in their mother tongue. The methodology used is that of the Eurobarometer surveys carried out by the Directorate - General for Communication. According to this survey, 37% of all citizens do not believe that railway undertakings inform passengers well about their rights on international (cross-border) lines. The level of dissatisfaction is even higher (51%), when only passengers who used international rail transport are interviewed. It is also important to note that only 29% of all citizens agreed that railway undertakings inform them adequately about their rights. The fact that 11 % replied they did not know and 37% did not consider this question relevant could also indicate low passenger awareness. Even though the replies in the open public consultation carried out in the course of the impact assessment represent a small sample size and cannot be taken as providing direct evidence, they support the findings of the Eurobarometer survey. The opinions of passengers and passenger/consumer associations point in the same direction with 79 passengers (61%) and 13 passenger/consumer associations (87%) disagreeing (either slightly or strongly) with the assertion that passengers are well informed about their rights. On the other hand, all eleven railway undertakings and one infrastructure manager participating in the open public consultation responded uniformly by agreeing (slightly or strongly) that passengers are well informed of their rights. The field research undertaken in the course of the impact assessment also supports the findings that passenger awareness would be insufficient. According to the case studies, the NEBs in Belgium, Finland, France, Latvia, Lithuania and the Netherlands did not believe that passengers were sufficiently aware of their rights under the Regulation. In contrast, the NEBs in Austria and Germany felt that passengers were well aware of their rights. The NEB in Germany (Eisenbahn-Bundesamt - EBA), which noted a steady increase of complaints, claimed that rail passengers’ awareness of their rights according to the Regulation was high and growing over time, thanks to several information campaigns. However, according to the Special Eurobarometer survey on passenger rights of 2014, in Austria and Germany the proportion of citizens considering themselves as not well informed about their rights by railway undertakings is above the EU average (44% and 56% respectively). During the interviews in the case studies, the Austrian NEB explained this dichotomy by the assumption that due to their high level of awareness, passengers in Austria are more demanding on their rights vis-à-vis service providers. Further indirect insights on the awareness level of rail passengers can be drawn from the assessment of the number and type of complaints in combination with the information from the annual activity reports of the EUROPE DIRECT Contact Centre (EDCC). EDCC is a service managed by the DG for Communication. It informs citizens and businesses on EU related matters, including on passenger rights. According to the cooperation agreements between the DG for Communication and the DG for Mobility and Transport, EDCC serves as first point of call and information for general passenger enquiries. EDCC informs in particular on the relevant rights of passengers to assistance and compensation and on the complaint procedures to follow. Therefore, even if the assessment of the number and type of complaints to EDCC may not provide a full picture about rail passengers' awareness, it still provides some indications on its level, especially when compared to air transport users. According to the 2015 report, from January to December, EDCC replied to 79 enquiries (or 0.18 per billion pkm) on rail passenger rights compared to 5,117 enquiries (or 8.46 per billion pkm) on air passenger rights. This important difference is also reflected in the activity reports for the previous years, i.e. 149 (0.35 per billion pkm) in 2014 compared to 6,588 (or 10.89 enquiries per billion pkm) and 151 (or 0.35 per billion pkm in 2013) compared to 6,682 (or 11.04 per billion pkm). Indeed, this data should be treated with care, as the low level of complaints could also indicate better application compared to air passenger rights. In combination with the fact that according to the Special Eurobarometer survey on passenger rights only 37% of citizens disagree that air passengers were well-informed by the airline company (compared to 51% in relation to the information provided by the railway undertakings) it could, however also indicate that rail passengers are less aware about their rights than air passengers. Moreover, some anecdotal evidence from the field and desk research for a number of Member States could also provide some indications about the passengers' awareness level. According to the UK NEB, 70-80% of passengers do not claim compensation when they are entitled to it. The Belgian NEB received only 80 passenger complaints in 2012 (both for international and national services) which is a low figure given that around 40 000 international journeys per year are delayed by more than one hour. Indeed, these figures should be treated with care, as a passenger decision to file a complaint might depend on a number of other factors (e.g. the value of compensation might be judged low compared to the effort). However, the Polish NEB advised that the number of complaints increased by 42.7% from 2013 to 2014 following an awareness campaign relating to complaint handling. This could indicate a potential correlation between the awareness level and the number of filed complaints. Finally, in Germany 9.9 % of all complaints to the NEB relate to the provision of information about cancellations, delays, replacement services and changes of platform, and in Romania 21% of the requests were related to information provision including requests for clarifications on passengers’ rights and the Regulation. This shows that passengers are clearly interested in receiving more information about their rights. 1.2.1.4Compensation and assistance to passengers in case of missed connections, delays or cancellations A) Through tickets The Regulation provides that railway undertakings and ticket vendors must offer "through tickets" where available. It defines a through ticket as "a ticket or tickets representing a transport contract for successive railway services operated by one or several railway undertakings . For example, this could mean a ticket or tickets for a journey from Brussels to Hamburg involving three different railway undertakings (SNCB, Thalys and DB) with three stops (Brussels-Liège, Liège-Cologne, Cologne-Hanover, Hanover-Hamburg). However, various sources (passenger organisations such as the European Passenger Federation (EPF), citiziens writing to the Commission and to EDCC) complain that the availability of through tickets is currently limited. The field research carried out in the course of this impact assessment confirmed a limited availability of through tickets. This is because railway undertakings do not, as a rule, establish commercial agreements between each other to offer through tickets as they shun the responsibility to provide assistance and compensation in the event of a delay or missed connection during a combined journey. Moreover, with the liberalisation of the rail market as a result of the 4th railway package, the number of operators will increase, and there is therefore a risk that less and less through tickets will be offered. For example, French SNCF claimed that through tickets between operators were only available exceptionally, and only where a relevant agreement exists between the railway undertakings concerned. In the Netherlands, through tickets for domestic travel are not offered as such, because passengers use a smart card (OV Chipkaart) to check in and out; for international journeys, Dutch Nederlandse Spoorwegen (NS) offers through tickets for some destinations, depending on the agreements between NS and other operators. Currently, no through tickets are available in Poland, but the Ministry for Infrastructure and Construction has set up a working group on this issue. In Romania, the state railway undertaking (CFR Călători) provides through tickets for its own services, while for international services, it provides tickets only where agreements with other operators are in place. CFR Călători does not sell tickets for services operated by competitors. The Austrian NEB indicated that obligations under the Regulation had a negative impact on the availability of through tickets and that railway undertakings were reluctant to offer through tickets on international services. In the same vein, Belgian SNCB expressed concerns that too restrictive requirements in connection with compensation payments might be a disincentive for operators to offer through tickets. The boot is on the other foot: Selling tickets only for segments allows railway undertakings to by-pass the obligations related to compensation for delays. This shows that certain costs of the rail market liberalisation are shifted to the consumers, who nowadays enjoy less protection under combined journeys than before the liberalisation. As a result, compensation is calculated differently in the event of delays when a journey is composed of several legs. According to the desk and field research, the calculation of compensation for a delay in some Member States, like Germany, Italy (since March 2015) and Lithuania, is based on the whole ticket price for the entire journey if the journey is carried out by a single operator or by different operators in a single public transport network association which provides rail services in a specific region (such as a "Verkehrsverbund" in Germany). However this is not always the case; for example in Italy before March 2015 , a number of continuous rail services were not considered as through tickets by railway undertakings (Trenitalia and RFI) but as separate transport contracts – e.g. a regional rail service followed by a medium or long-distance national rail service. In that case, a delay of less than one hour on the first rail service which led to a missed connection for the second service would not entitle a passenger to assistance or compensation, even if he/she arrived with a delay of more than one hour at the final destination, since the two rail services were governed under separate transport contracts. According to information received, notably from EPF but also from ticket vendors and travel agents, railway undertakings tend to regard separate tickets as separate contracts, even if they are bought at the same time and in a single purchase transaction for one journey. Consequently they deny compensation or assistance for the whole journey and grant it only for the separate segments. Rail companies justify this policy by referring to the General Conditions of Carriage for Rail Passengers (GCC-CIV/PRR) which stipulate that one ticket represents one transport contract and that several tickets represent several contracts unless it is specifically mentioned that they represent a single contract . Although the GCC-CIV/PRR is only a recommendation document, railway undertakings widely use them as a reference document. In the 4th railway package, the Commission clarified certain aspects related to through tickets and their availability and declared its intention to monitor rail market developments in the Member States in this respect. It will decide, by 2022, on the need for further action. However, currently the enforcement of the relevant provision in the Regulation is ineffective. The effects of the EC Interpretative Guidelines (2015) which recommend that "separate tickets sold under a single contract should be understood as a through ticket” cannot yet be assessed owing to the short time since their introduction and, in any event, they are not binding on the railway undertakings.

The replies to the open public consultation show the controversy of the subject and could reflect the different interests of various stakeholders groups. In particular, 51% of citizens (66) and 60% of passenger/consumer associations (9) responded that the concept of through tickets was unclear, (partly) missing or (partly) obsolete. Also, 50% of public authorities (8) consider that the concept is unclear or (partly) missing. On the other side only 27% (3) of railway undertakings believe that the concept of through tickets was unclear and 64% (7) that do not. 1.2.1.5Enforcement: NEB complaint handling and cooperation Member States are in charge of ensuring the correct application of the Regulation. They have to designate national enforcement bodies (NEBs). However the tasks and enforcement policies of NEBs vary greatly depending on the country; and different interpretations of their role co-exist. The Regulation requires NEBs to cooperate, to exchange information on their work and decision-making principles to coordinate their enforcement activities across the EU. Despite Commission efforts to bring NEBs together in regular meetings and to reply to and share questions on interpretation, the cooperation level between NEBs is low and, if any, restricted to a few cross-border cases, notably when passengers complain about incidents during cross-border journeys or when travelling in another country than their residence. The ex-post evaluation found that "of the 17 case study States, the NEBs of 7 States had had no contact with other NEBs, and for a further 6 NEBs any contact has been limited".The Polish NEB considered that owing to the frequency of NEB meetings good working relationships could not easily be established. At the NEB meeting of 31 March 2015, NEBs insisted that rules for the cooperation are unclear and the wording of the current Regulation did not allow to fully clarifying this in interpretative guidelines. As a result, passengers who suffer a delay or cancellation during a cross-border journey may not be adequately protected. Despite the fact that passengers can complain to any NEB, NEBs may avoid to assume responsibility to handle a complaint if the incident took place in another or involves more than one Member State. Although at recent meetings with NEBs there was no evidence that such a situation has indeed produced itself, such a scenario was not ruled out, notably at a NEB meeting of 2015 to discuss the Interpretative Guidelines. This may notably occur if the ticket is bought in one Member State, the journey is carried out by a railway undertaking licensed in another Member State and the incident happened in a third one. The process to handle complaints and issues of competence, i.e. which NEB has to handle a complaint, is not entirely clear, although the Commission has tried to clarify this and to propose a procedure in its 2015 Interpretative Guidelines. In the NEB meeting of 6 March 2017 some NEBs mentioned again that the cooperation process was not sufficiently clear to them and that sharing and coordination of enforcement activities was not done sufficiently. While international journeys represent only 7 % of all rail journeys in the EU, the primary purpose of cooperation between NEBs should be to ensure that cross-border cases are handled in a way allowing passengers' complaints to be adequately dealt with. In addition, cooperation to exchange decision-making principles shall improve consistency of application across Member States so that passengers can expect similar levels of enforcement. Also the process that passengers should follow when lodging complaints under the Regulation is not entirely clear. According to the Italian NEB it is problematic that the Regulation does not specify that passengers should complain to railway undertakings in the first instance, as NEBs then need to contact the railway undertakings to obtain information about the incident. Finally, the Regulation does not make any connection with passengers' rights to alternative dispute resolution (ADR). The ADR Directive ensures that consumers have access to independent, fast and cost-effective procedures for solving their disputes with businesses out of court. Such out-of-court dispute resolution is most often not granted by NEBs, who concentrate their activities on enforcement. 1.2.2Secondary issues with the regulation The following issues qualify as "secondary" problems as their impact on stakeholders is less than for the "major" issues. They relate mainly to clarifications of rules in the Regulation, definitions and procedures. 1.2.2.1Discrimination on the basis of nationality, residence or currency (Protection of all passengers (including PRMs) – see Figure I) Although the Regulation does not contain a clause to prohibit discrimination on the basis of nationality, rail passengers are in principle protected by the Treaty on the Functioning of the European Union. However, there have been instances of discrimination on the basis of residence or currency, which would amount to indirect discrimination on the basis of nationality (e.g. if residents of France are discriminated against, this will disproportionately discriminate against people of French nationality). The European Passenger Federation (EPF) reported for instance that to be able to use a season ticket or a national reduction card on a certain national railway, passengers must have a nominative card which can only be obtained in the neighbouring countries. This represents discrimination on the basis of residence. In another example, a national railway has not made available certain fares on the internet to passengers who did not indicate the Member State of this railway as their country of residence on its website. EPF mentioned examples for Paris – Geneva TGV fares and also for Paris – Barcelona TGV fares. The latter discrimination issue received some press coverage and was quickly removed. It was also addressed by the European Parliament under a parliamentary written question. In the Commission's contacts with SNCF and RENFE the former suggested that this was a “technical error”, but other similar instances were reported to the Commission through citizens' complaints. This also represents discrimination on the basis of residence. There have also been instances where passengers were discriminated on the basis of currency. In particular, citizens reported that a railway undertaking offers tickets on its website depending on the country customers indicate to be their residence, e.g. if a customer indicates country X, then tickets cannot be bought to “any station of country Y”. Customers indicating a continental country of residence cannot buy through tickets beyond the UK Eurostar stations. Eurostar justifies this policy by claiming that some fares are only available in pounds sterling (and only visible when selecting “UK”) and others only in euros. However the price differences cannot only be explained by exchange rate fluctuations. These policies could also be understood as indirect discrimination on the basis of nationality. NEBs cannot and do not currently address such policies, and there is no obligation under the Regulation for Member States to mandate them to do so. This means that passengers have to seek redress from national courts in cumbersome, lengthy and costly procedures. 1.2.2.2 Definitions (Protection of all passengers (including PRMs) – see Figure I)

A) "Missed connection" The lack of a clear definition of which situations are covered under the concept of "missed connection" adds to the problems related to compensation and assistance, also in connection with the issue of through ticketing, described above. Although the Regulation considers missing a connection as a situation of disruption it is not entirely clear whether 'missed connection' only means a situation where a passenger misses his/her next passenger service in a journey under a transport contract owing to a delay of the previous service or whether other scenarios are covered under this notion (e.g. missed connections under separate contracts). Neither are the obligations of railway undertakings or other actors clearly spelt out in such a situation and passengers may not be adequately protected. The responses to the open public consultation show that 21% (27) of the citizens believe that the concept of missed connections is unclear with 46% (60) having no opinion. On the other hand, 82% (9) of the railway undertakings and 50% (3) of the industry federations responded there was no problem with the clarity of the rules in the Regulation. B) Re-routing and "comparable transport conditions" Another element that hinders the effectiveness of passenger protection is linked to re-routing in case of delays, cancellations or missed connections. According to EPF, many railway undertakings limit what they regard as ‘comparable transport conditions’ for rerouting (as per Article 16(b) and (c) of the Regulation) to their own services and exclude services from other companies or other modes of transport, even if this means extra delays for passengers. According to EPF, some railway undertakings specify that re-routing must be made under exactly the same conditions (type of day, type of train, peak/off-peak services, etc.). This appears to be a too narrow interpretation impacting negatively on passengers, notably as the Regulation explicitly speaks about "comparable transport conditions" without, however, defining that term. 1.2.2.3CIV (Protection of all passengers (including PRMs) – see Figure I) A number of issues have also been identified with regard to the relations between the Regulation and the internationally applicable CIV UR of COTIF of which a major extract is part of the Regulation and reproduced in Annex I to the Regulation. Problems have been identified with definitions of terms in the Regulation and the CIV that could be in conflict. Moreover, there is a risk of potential inconsistencies between the Regulation and the CIV in the event the OTIF would decide to amend the CIV, as explained below. A) Definitions – concept of "carrier" The definition of "carrier" introduced in the Regulation is potentially in conflict with the term "carrier" as defined in the CIV. Indeed, the Regulation defines "carrier" under the list of definition, but further in the text it does not mention "carrier" any more and puts all obligations on the "railway undertaking". In contrast, the CIV focuses on the term "carrier" which is broader in nature and may include also certain domestic bus operators or international maritime companies in the chain of rail carriage. Unclear and inconsistent provisions could lead to different interpretations of the Regulation, with patchy implementation and variable levels of enforcement. In the open public consultation, the majority (9) of railway undertakings considered the notion of ‘carrier’ as unclear. The Dutch passenger organisation requests to clarify the relationship between both acts, notably as regards the rules applicable in case of conflicts. The Finnish Competition and Consumer Authority said that the CIV could become an issue if it was used more often. However, the Finish NEB did not identify the CIV as a problem. B) Changes to the CIV Including the CIV in Annex I to the Regulation risks posing legal and enforcement problems due to the CIV being an International Convention, which is subject to the rules of the Intergovernmental Organisation for International Carriage by Rail (OTIF). OTIF has repeatedly in 2013 and 2014 advised the Commission that if the CIV Uniform Rules were "to continue to improve passengers' rights and to improve the entire CIV system, it will be necessary, from time to time to make arrangements to maintain their effectiveness". OTIF had in mind for instance to adapt financial amounts for compensation in the light of inflation. The CIV can be amended swiftly through an OTIF General Assembly decision. Amending the CIV would mean that the extract in Annex I of the Regulation (which explicitly cannot be amended through comitology,) would differ from a revised CIV. Rail operators and NEBs would be confronted with two different versions of the same rules. In such a situation, passengers in the EU would thus not benefit from e.g. increased compensation amounts for damages. 1.2.2.4Assistance in case of major disruptions (contingency planning) (Burden on railway undertakings – see Figure I) In the event of major transport disruptions (e.g. natural catastrophes, terrorist attacks etc.), Member States' and transport industry responses to ensure assistance and mobility continuity in such situations vary or are inconsistent. According to the desk and field research conducted, the instances of major disruption seem to represent between 0.1% up to around 5% of the incidents or irregularity of rail services. For further details, please consult Tables A3 and A4 of Annex 5. Although these events are by nature exceptional, their impact on railway undertakings as well as on passengers can be significant. In the absence of contingency planning involving all rail transport actors, passengers who are stranded because their rail transport is severely disrupted might, in some Member States, not get timely assistance, notably as regards re-routing, care (including meals and refreshments) or reasonable accommodation if the journey cannot be pursued. In addition, taking into account the international obligations deriving from the UNCRPD, organisations representing persons with disabilities should be closely consulted in the development and implementation of legislation, policies and other decision-making processes concerning issues related to them. Under the 4th Railway Package, only railway undertakings have to have contingency plans in place, i.e. to provide information and assistance to passengers and to preserve their mobility in the event of a major transport disruption. However, no such obligations exist for other actors such as station and infrastructure managers or national authorities. The burden to provide assistance to passengers in the event of major transport disruption has therefore to be borne by railway undertakings alone. If these are unable to cope, passengers are left to their own resources in especially difficult situations. This would mainly affect vulnerable categories such as PRMs, elderly persons or children. According to the desk and field research, most Member States and some railway undertakings have put in place certain measures to cater for events of service disruption (see Table A4 in Annex 5 for further information). However, the extent to which the different stakeholders are involved varies considerably from one Member State to another and notably when the station manager and the railway undertaking are separated. Burden on railway undertakings in case of 3rd party responsibility

(Burden on railway undertakings – see Figure I) Under the current Regulation, it is the responsibility of railway undertakings to provide assistance and care and pay compensation in the event of long delays, missed connections and cancellations even if it is clear that a third party caused the incident. This would be the case, for instance, if the infrastructure manager did not ensure adequate maintenance of the tracks and their environment and leafs or branches fallen on the tracks caused a delay. For such a situation the Regulation does not contain specific provisions on 3rd party redress. Railway undertakings may thus have more difficulties to obtain redress, depending on the applicable national legislation. 1.2.2.5Complaint handling by railway undertakings (Burden on railway undertakings – see Figure I) The 2013 Eurobarometer on Europeans’ satisfaction with rail services identified “a notable increase in the proportion of Europeans who are satisfied with complaint handling mechanisms” compared to previous years. In the open public consultation, slightly more citizens (42 or 32%) believe that the Regulation had a high or very high impact on service quality and complaint handling. Those who think its impact was low or very low (38 or 29%) are fewer. Amongst passenger/consumer organisations, 3 (20%) thought the Regulation's impact was high, whilst 5 (33%) thought it was low or very low. However, the assessment of the complaint handing mechanism carried out in the course of the ex-post evaluation and impact assessment suggests that there is still room for improvement notably as regards unclear deadlines for complaint handling. All railway undertakings indicated in the field research that in the absence of a time limit for submitting complaints it was difficult for them to establish the details of an incident. Moreover, different deadlines exist under national law, increasing legal uncertainty and administrative burden (although it is difficult to quantify this). This seems unnecessary in view of usual passenger conduct. While currently passengers are free to lodge complaints within the time frames under national law, the information received from railway undertakings, NEBs and EPF indicate that they usually complain within one month after an incident. 1.3Description of the main problems linked to the issue of "force majeure" (Part II – see Figure I) Passengers who suffer long delays are entitled to a number of rights, i.e. i) the right to choose between reimbursement of the ticket price or re-routing to their final destination; ii) the right to information and assistance and finally iii) the right to request financial compensation in the form of a proportion of the ticket price (25 % for a delay of 60 to 119 minutes and 50 % for a delay of 120 minutes or more). This latter additional payment is meant to compensate passengers for the inconvenience suffered by the delay. Overall, railway undertakings comply with this requirement and national legislation or carriers' customer policy may provide for even more generous compensation. In 2013, and contrary to the common understanding until then, the Court of Justice of the European Union ruled that railway undertakings also have to pay compensation in situations where delays were caused by "force majeure". "Force majeure" is a well-established general legal principle describing events which may affect the performance of a service/contract but are beyond the control of the parties. As the Court already noted in an early Court case , it implies that "the non-performance … is due to abnormal and unforeseeable circumstances beyond the control of the person invoking "force majeure" whose consequences could not have been avoided in spite of the exercise of all due care". In these exceptional circumstances, it is recognised that an individual or entity may be able to escape responsibility, on the basis of the general principles of legal fairness and proportionality, and in particular an equitable balancing of the interests of the parties. The concept is found in national and international law and in a wide range of areas of EU law, from agriculture to postal services and the financial sector (e.g. credit transfers and payment services) to package travel and passenger rights in the air, bus and coach and waterborne transport sectors. Indeed, in the area of EU passenger rights legislation, "force majeure" clauses were expressly included in the legislation in the air, bus and coach and waterborne transport sectors to reflect the "equitable balancing" of the interests of passengers and transport operators. For example, under the legislation on air passenger rights, obligations on operating air carriers should be limited or excluded in cases where an event has been caused by "extraordinary circumstances" which could not have been avoided even if all reasonable measures had been taken. A comparable provision exists under the Montreal Convention. Under the Regulation on passenger rights in waterborne transport , the carrier is not liable to compensation when it can prove that the cancellation or delay is caused by weather conditions endangering the safe operation of the ship or by extraordinary circumstances hindering the performance of the passenger service which could not have been avoided even if all reasonable measures had been taken. Under the Regulation on passenger rights in bus and coach transport, even the obligations of the carrier to assistance in case of cancelled or delayed departures shall not apply when the carrier proves that the cancellation or delay is caused by severe weather conditions or major natural disasters endangering the safe operation of bus or coach services. As regards the rail sector, before the EU Court of Justice ruling, it was commonly understood by all stakeholders, rail industry, national authorities and passenger representatives alike, that similar considerations applied to the payment of compensation under the rail passenger rights Regulation via its reference to the CIV rules, which contain a "force majeure" clause for damages. However, in its judgment in Case C-509/11 the Court rejected the argument of the Commission and concluded that the reference to CIV could not be understood as "carrying over" a "force majeure" clause into the compensation obligations set out in Article 17 of the Regulation. As a result, railway undertakings currently have to pay compensation in situations where they were not responsible for long delays and which they were not able to prevent. Therefore, the absence of a clause in the Rail Passenger Rights Regulation to exempt railway undertakings in such situations from the payment of the compensation amounts per se to unfair treatment. There is also a clear problem not only of internal coherence within the Regulation itself but also of legal certainty given the drafting of Article 15 of the Regulation, which expressly refers to the chapter in the CIV, which includes a "force majeure" clause. The problem of coherence extends also to the Package Travel Directive, which uses the concept of "unavoidable and extraordinary circumstances" and which covers rail journeys as part of a package. The draft UNWTO Convention on the Protection of Tourists and the Rights and Obligations of Tourism Service Providers, which is currently being negotiated, also uses the concept of "unavoidable and extraordinary circumstances". It has been demonstrated in the area of air passenger rights, that, unless situations of "force majeure" or "extraordinary circumstances" are clearly and narrowly defined, air carriers tend to take broad interpretations of such circumstances in order to reduce the compensation amounts that have to be paid. In the air transport field, this has given rise to a series of cases before the Court of Justice which have underlined the key objectives of passenger rights legislation. Despite numerous requests, railway undertakings have not been very forthcoming with data on the cost of the current arrangements. However, field and desk research made evident the important differences in estimates of "force majeure" by railway undertakings. The data represents a very broad range of "force majeure" incidents in the EU, which varies from ‘the vast majority’ to less than 1.25% of delays with the average of the reported proportions of delays considered to represent ‘force majeure’ of 22.6%. These discrepancies are largely caused by the different definitions applied by Member States . Therefore, depending on the definition, the proportion of delay minutes which could be considered to fall under this definition varies significantly. This becomes even more evident while considering the potential scale of delays attributed to force majeure in the UK of delays that can be attributed to different causes. Table 1 – Scale of delays attributed to "force majeure" events Force majeure definition Causes included % of delay within ‘force majeure’ definition 1. Any cause of delay outside of the control of the railway undertaking concerned TOC-on-TOC All NR-on-TOC , that includes causes linked to External factors, Network management, ,Non-track access, Severe Weather, Autumn & Structures and finally problems on tracks 71.0% 2. Any cause of delay outside of the control of the railway undertaking concerned (but assuming all TOCs count as one organisation) All NR-on-TOC, that includes causes linked to External factors, Network management, ,Non-track access, Severe Weather, Autumn & Structures and finally problems on tracks 59.8% 3. Any cause of delay which could not reasonably have been foreseen or could not reasonably have been mitigated External factors; Severe Weather, Autumn & Structures; Non-Track Assets Track 41.4% 4. Any cause of delay which could not reasonably have been foreseen External Severe Weather, Autumn & Structures 17.0% Source: (UK, 2015-2016)

Therefore, in the context of this impact assessment, the Commission considers several definitions of the "force majeure" concept, which will be further described and assessed when considering the policy options (see Section 4). Railway undertakings have repeatedly appealed to the Commission to re-introduce the concept of "force majeure" in the Regulation. Similarly, when specifically consulted by the Commission on this issue, 13 Member States have said that they were in favour of such a re-introduction. Only 2 Member States were rather against although they said that they could perhaps accept it, and 11 Member States had not made up their mind or did not answer. Most Member States expressing an opinion made it however very clear that the re-introduction of a force majeure clause should be precisely ring-fenced to avoid abuses by railway undertakings. Therefore it is considered opportune that this impact assessment looks into the issue. 1.4How would the problem evolve, all things being equal? (Baseline) 1.4.1 Part I – problems linked to the current application of the rail passenger rights legislation The rail passenger demand is expected to grow by an annual average of 1.8% between 2015 and 2035 with much of this growth occurring between 2020 and 2030. This increase will be reflected more heavily in international and domestic long distance services based on the assumption of an increasing availability of high speed services and the implementation of the fourth railway package. The rail sector’s share of passenger demand is estimated at 7.6% in 2014 and is expected to rise to 9.2% by 2035 against road transport with a relevant impact on carbon emissions. If the Regulation remains unchanged and no further action at EU level is taken, most of the issues identified (with the notable exception of some of the problems linked to the scope of the legislation) would not be addressed and passengers will continue to face the problems that are described in section 1.2. Passengers will benefit from the phasing-out of exemptions under Article 2(4) for domestic services at the latest by 2024 and by any national initiative to reduce the scope of exemptions before that date. However, in the consultations for this impact assessment, Member States revealed that they were not planning to change exemption schemes in the short term. With the further opening of the domestic rail passenger market under the 4th railway package, there is also a risk of further exacerbating the identified problems, even if not all the objectives of domestic liberalisation will be achieved owing to national exemptions under the 4th railway package. The expiration of the exemptions for domestic services is expected to have an impact on social benefits as passengers will be able to enjoy better information on their journey and on passenger rights and assistance when disruptions take place (including PRMs). The expiration of the exemptions would also have a material impact, in particular on the amount of compensation paid for delays according to Article 17 of the Regulation. Thus, the costs for railway undertakings will increase slowly. Similar results are observed for the assistance in case of delay under Article 18 of the Regulation. The increase in the assistance level in the long-term due to the expiration of the exemptions is not as important as the compensation increase. After expiration, passengers will have the right to assistance in all Member States on all non-exempted services. This again raises the cost for railway undertakings and infrastructure managers which amounts to EUR 1,178,029 million and for infrastructure managers to EUR 687,996 million for a 15-year period. The Commission proposal for the European Accessibility Act (EAA) aims at improving accessibility in rail transport by complementing the provisions of the PRM TSI. Its impact on rail transport services will depend on its final scope to be determined in the discussions in Council and European Parliament. However, under the baseline, the objective of clarification of passenger rights legislation and improved quality of transport of elderly and PRM passengers will not be achieved. Without strengthened provisions there is a risk that, under the rail market liberalisation of the 4th railway package, PRM passengers are not sufficiently protected. The UNCRPD, the European Disability Strategy and the EAA set out to better integrate PRMs in society. Under the baseline, PRM rights are not aligned with the new requirements under these instruments, notably as regards assistance to ensure personal mobility and accessibility of information. Direct or indirect discrimination on the basis of nationality, residence or currency will not be addressed by NEBs. The only option for citizens suffering from alleged discrimination would have to refer to Article 18 TFEU in a court procedure. As regards the consistency with other legal acts, the revisions to the CIV UR by OTIF would not be reflected in the Regulation and its Annex I, which contains an extract of the CIV UR. Annex I cannot be adapted without revision of the Regulation. This means that in case of amendments to the CIV UR, railway undertakings in the EU and NEBs would be confronted with two different legal acts. Updates to the CIV benefitting passengers (e.g. increasing insurance amounts in case of accidents) cannot be reflected in Annex 1. Passengers in the EU would thus have lesser rights than passengers in other OTIF member states. The Regulation will be included in the Annex of the Consumer Protection Cooperation (CPC) Regulation 2006/2004, once the Commission's proposal for the new CPC Regulation is adopted by the co-legislators. The CPC Regulation provides for a cooperation framework between national competent authorities to stop cross-border infringements to Union consumer laws. The inclusion of the Regulation in the Annex of the CPC Regulation is expected to strengthen enforcement in a cross-border context for the following reasons. The actions of national enforcers are limited by the national jurisdictional boundaries. To put an end to cross-border infringements, a cooperation mechanism is needed, obliging the competent authority of the jurisdiction where the author of the infringement is established (with its assets) to act against this author, upon request of a competent authority from another Member State's jurisdiction. Where more than two Member States are concerned, an additional mechanism of cooperation and coordination is needed. The CPC Regulation provides the legal basis for both mechanisms. Its revision aims to reinforce the existing procedures and powers in order to adapt the Regulation to the new conditions of the digital market and to ameliorate the mechanisms on the basis of the experience gained during the past 10 years. Under the baseline, conflicts regarding legal consistency with the Package Travel Directive and its use of the concept of "unavoidable and extraordinary circumstances" will not be addressed. Regarding contingency planning, different measures by the various stakeholders in different Member States will continue to exist. According to the available information, railway undertakings have ready contingency plans and are required to have them under the 4th railway package. According to the stakeholder consultation, in Austria, Belgium, Finland, France, Germany, Latvia, Lithuania, Netherlands, Romania, UK, Denmark, Ireland and Portugal other stakeholders such as station managers, infrastructure managers, state authorities, police, etc. also have a role in a situation of major disruption, but this is not always the case and not in all Member States (Annex 5, Table A4). This means that in such situations and in the absence of mandatory requirements for other actors, the railway undertaking might be alone to provide assistance to passengers. This might put the railway undertaking in a difficult position or it may not even be able to shoulder the burden e.g. to provide food or overnight accommodation. As a result, stranded passengers might not be adequately taken care of. Under the baseline scenario, the burden of railway undertakings stemming from unclear deadlines for complaint handling will continue to exist. Railway undertakings will continue to keep data and information for an indefinite period of time subject to varying national rules, leading to an unlevel playing field. Nowadays, thanks to electronic data and storage systems to keep the data should not be a high burden. However, there might be problems when railway undertakings will need to retrieve incident information after long periods of time from their files or from another provider. Finally, Article 38 of the Charter of fundamental rights calls for a high level of consumer protection. Article 26 calls for integration and independence of PRMs. These objectives will be reached only moderately, given that the identified problems will not be addressed.

1.4.2 Part II –problems linked to the issue of "force majeure" An important component of the compensation costs is linked to "force majeure". Railway undertakings will continue to pay compensation in case of major disruptions caused by "force majeure". An estimate provided by the Community of European Railways (CER) states that for a small-sized company compensation costs due to "force majeure" events may reach up to EUR 1 million, while for a medium- and large-sized rail company, this amount may reach up to EUR10 million per year. According to the little data provided by railway undertakings during the targeted stakeholder consultation, compensation costs due to events of "force majeure" may reach up to EUR 4-5 million per year for a medium- and large-sized company (data source is subject to business secrets). This figure is supported by the estimates suggested by the impact assessment tool. According to the tool, the "force majeure" compensation payments can reach from EUR 10 to 38 million per year depending mainly on the size of the company and the year of operation. On the other hand, passengers will continue to enjoy the right to claim compensation even when delays are caused by "force majeure". It is important to note the unpredictable nature of "force majeure" events. When compensation is paid in case of "force majeure", greatly different amounts apply from one year to another. This generates risks and volatility in the business model of rail operators, especially the open-access, non-subsidised ones, and affects their ability to invest. Additional analysis is provided in Annex 5. In order to ensure a common minimum level of treatment among Member States and to limit at maximum the negative impact on passengers the concept of "force majeure" for the purpose of this IA needs to be defined restrictively so that only clearly defined and exceptional situations can qualify. Under a narrow definition force majeure situations would be limited to heavy floods, earthquakes, volcanic eruptions and very heavy storms (known as 'Acts of God'). This excludes normal seasonal weather such as autumnal storms and snowfall (even heavy) in winter, interruptions caused by normal wear and tear of rolling stock or infrastructure even where maintenance is carried out correctly and at regular intervals, theft of metal or catenary, vandalism, power cuts, demonstrations on rail tracks, labour strikes or suicides which could be considered as being inherent in the operation of the service. It would also exclude terrorist attacks. In addition to invoking "force majeure" railway undertakings would have to demonstrate that they have taken all reasonable measures to avoid delays of more than 1 hour to be exempted from paying compensation. Considering the data provided by the UK and assuming an equal probability of "force majeure" occurrence across Member States, it can be assumed that less than 17% of all delays of more than 1 hour across the EU are caused by such circumstances. Based on this information, it is assumed that depending on the year in question the level of "force majeure" incidents could reach at most 17% - 20% of all delays exceeding 1 hour. Moreover, information from 14 Member States made evident that the median value of all services being delayed for more than 1 hour in a regular year accounts for 1% across the EU. This means that around 7,280 thousand pkm across the EU are affected by "force majeure". Yearly, the compensation the railway undertakings in the EU would need to pay due to "force majeure" events which correspond strictly to "Acts of God" could fluctuate from EUR 10 to 54 million which accounts for around 0.31%-1.7% decrease of their compensation costs and 0.26%-1.4% of their operating costs. Under a broad definition, which corresponds to situations where a railway undertaking proves that a long delay of more than one hour is caused by external factors which would include i.a. severe weather conditions, cable theft or failures, vandalism, fatalities and terrorist attacks, the percentages are changing. The compensation all railway undertakings in the EU would need to pay due to "force majeure" events under such a broad definition could fluctuate from EUR 19 to 95 million which accounts for around 0.59%-2.99% decrease of their compensation costs and 0.49%-2.47% of their operating costs. The above-mentioned estimates of the total compensation costs related to "force majeure" events and the percentage of the total operating costs that these costs represent suggest that the financial impact of the Court ruling on railway undertakings is definitely low. Thus, there is no economic data that would prove that there is a serious financial problem for the railway undertakings. However, the issue of legal unfairness still persists. In addition, to respond to the repeated requests by all railway undertakings and most of the Member States which expressed an opinion during the consultation by the Commission, the issue of "force majeure" and the potential effects that the re-introduction of a "force majeure" clause could have on the rest of the policy options will be analysed and presented separately after the preferred policy option has been chosen. 2Why should the EU act? Right to act Article 91(1) TFEU serves as the legal basis for the adoption of EU legislation related to a common transport policy. This covers provisions to protect the rights of passengers when travelling by rail in the EU. This provision was the legal basis for the Regulation, and will serve as a legal basis for a future revised Regulation. The EU has also received conferral to promote the interests of consumers and to ensure a high level of consumer protection (Article 169 TFEU). The EU shares competences with Member States to regulate in the field of common transport pursuant to Article 4(2)(g) TFEU. This means that the EU can only legislate as far as the Treaties allow it, and with due consideration to the principles of subsidiarity and proportionality . Subsidiarity While the greater part of rail passenger transport in the EU still takes place on a national level (381 billion passenger-kilometres), a considerable and overall growing proportion is carried out across borders in the EU (22 billion passenger-kilometres travelled on international journeys) . As the EU intends to stimulate rail services as well as cross-border mobility, notably in agglomerations and regional conurbations there is a need for action at EU level so that citizens travelling on domestic rail services of different EU countries enjoy the same rights. Disparities in the level of protection between Member States due to the current regime of exemptions under the Regulation lead to passengers having different rights and different means of redress when using rail services in different Member States. This applies in particular to PRM passengers whose rights to mobility are enshrined in the UNCRPD . These passengers would be encouraged to travel if they can expect equivalent rights to accessibility and assistance when travelling in different EU countries. National legislation would also not allow tackling cross-border journeys appropriately as a single journey would fall under two or more legal regimes. The most appropriate level to address the problems identified is therefore at EU level in order to ensure a uniform high level of passenger rights across all Member States for national and international journeys alike. Further to the judgement of the Court of Justice of the European Union in Case C-509/11 of 2013, railway undertakings have to pay compensation to passengers also in situations where delays were caused by "force majeure" and which they could not have foreseen or prevented. In order to ensure legal fairness for rail operators across the EU with regard to other modes of transport and to ensure consistency with other EU legislation such as the Package Travel Directive it seems appropriate for the EU to act. It would also be appropriate at EU level to come up with an EU-wide definition of the nature of "force majeure" in order to clearly delineate these events, limit the impact on passengers and ensure legal certainty for all actors. The current Regulation leaves much room for interpretation as regards its application and enforcement. Different interpretations and thus divergent application of rules and different practices are obstacles to the Single Market and negatively affect the competition between operators. Moreover, these discrepancies do not allow ensuring the same level of passenger rights across all Member States as originally laid down in the objectives of the Regulation. Attempts already made to align the understanding and application between the Member States through non-legislative actions such as the interpretative guidelines on the Regulation have not yielded sufficient result. Only reinforced common EU rules can create a level playing field for rail transport operators while ensuring a basic set of passengers across all EU Member States. Consequently, as the objectives cannot be achieved sufficiently by the Member States, it seems that EU action would be appropriate and proportionate to achieve this aim. 3What should be achieved? (PART I)

3.1General policy objective In view of the two main problems areas identified in the problem definition, as described in section 1, there are two general objectives to address the identified problems. This should ensure a fair balance between the interests of passengers and the rail industry. The first policy objective is thus to promote equal and strengthened rights for all rail users including PRM in the EU. The second policy objective is to enhance railway undertakings' competitiveness and to better allow them to invest in the quality and effectiveness of rail passenger services, without negatively impacting the rights of passengers. The two general objectives can be seen as conflicting as benefits for passengers will generate a financial burden for railway undertakings and benefits for railway undertakings risk generating a reduction in passenger rights. This has made it necessary to find a compromise between the two objectives. The issue of "force majeure", which is linked to the second general policy objective, is dealt with separately following the current analysis under Section 6. Specific objectives Two specific objectives (SO) have been identified which are linked to the identified issues discussed in section 1.2. SO1: improve the application and enforcement of the Regulation, so that all passengers can fully exercise their rights when travelling by rail in the EU This objective addresses the problems related to the protection of passengers (including PRM). Issues with a major impact on passengers described in section 1.2.1.: - Issues regarding exemptions (scope of the Regulation – Section 1.2.1.1) should be addressed to allow a more uniform application of the Regulation in all Member States to increase legal certainty of passenger to their rights under the Regulation, wherever they travel in the EU. - The protection of PRM passengers (Section 1.2.1.2) should be increased by ensuring improved and independent access to information and complaint handling and better access to transport services through more uniform assistance in all EU Member States. - The awareness of passengers about their rights should be increased through strengthened dissemination of information (Section 1.2.1.3). - The rights of passengers to compensation and assistance in case of missed connections, delays or cancellations should be reinforced by strengthening the definition of and provisions on through ticketing (Section 1.2.1.4). - The rights of passengers to an effective enforcement of the Regulation should be strengthened through better NEB complaint handling and cooperation (Section 1.2.1.5). Issues with a lesser impact on passengers described in section 1.2.2 (secondary issues): Protection of rail passengers - Passengers should not be discriminated on the basis of their nationality, residence or currency of payment to ensure an equal treatment of passengers irrespective of where they buy