EUROPEAN COMMISSION Brussels, 10.12.2021 SWD(2021) 413 final COMMISSION STAFF WORKING DOCUMENT



EVALUATION

of Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway {SWD(2021) 414 final}



Table of contents 1.Introduction 1.1. Overall context of passenger rights 1.2. Purpose and scope of this evaluation 2.Background to the intervention 2.1. Specific context of waterborne passenger rights 2.2. Description of the intervention and its objectives 2.3. Baseline and points of comparison 3.Implementation / State of Play 3.1. Description of the current situation 3.2. Member States implementation and monitoring 3.3. Major recent changes 4.Methodology 4.1. Short description of methodology 4.2. Limitations and robustness of findings 5.Analysis and answers to the evaluation questions 5.1. Effectiveness 5.2. Efficiency 5.3. Relevance

5.4. Coherence 5.5. EU added value 6.Conclusions Annex 1: Procedural information Annex 2: Synopsis report of stakeholder Consultation Annex 3: Methods and analytical models Annex 4: Review of the intervention logic Annex 5: Costs – benefits identified in the evaluation (Overview) Annex 6: Tables and Figures Glossary Term or acronym Meaning or definition ADR Alternative Dispute Resolution CPC Consumer Protection Cooperation EC European Commission ECC European Consumer Centre CJEU Court of Justice of the European Union EEA European Economic Area EMSA European Maritime Safety Agency EU European Union EU27 The 27 Member States of the EU after 31 January 2020 IMO International Maritime Organisation NEB National Enforcement Body PRM Persons with disabilities or reduced mobility PSO Public Service Obligation SCM Standard Cost Model SMS Short Message Service TFEU Treaty on the Functioning of the European Union UNCRPD United Nations Convention on the Rights of Persons with Disabilities 1. Introduction 1.1. Overall context of passenger rights Collective transport services are vital to stimulate economic growth, to enable social and territorial cohesion and to preserve the environment in the EU, and their quality affects directly their attractiveness and the satisfaction of passengers. Traditionally passenger rights were mandated through the terms and conditions of the contract between passengers and carriers. This approach proved insufficient as very often it turned out to be costly, cumbersome and frustrating for passengers to defend their rights vis-à-vis carriers. It is the reason why the objective to introduce passenger protection rules in all modes of transport was set by the Commission twenty years ago. Today the EU framework for passenger rights provides a minimum level of protection for citizens using collective transport services (either air, rail, waterborne, or bus and coach transport). They promote quality and protect passengers during all phases of the journey (before, during and after the service). The framework consists of five Regulations covering air, rail, bus & coach as well as waterborne passenger rights. These Regulations were designed to minimise travel disruptions, improve information available to passengers, and ensure an immediate and proportionate assistance when required, including for persons with disabilities and reduced mobility (PRM). EU passenger rights were mainly adopted between 2004 and 2011 through the following Regulations: -Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, keeping in mind that denied boarding and carrier’s liability in the event of accidents in aviation were already addressed in the 1990s. This Regulation was complemented by Regulation (EC) No 1107/2006 concerning the rights of persons with disabilities and persons with reduced mobility when travelling by air; -Regulation (EC) No 1371/2007 rail passengers’ rights and obligations, which will be repealed and replaced by Regulation (EU) 2021/782 as of 7 June 2023;

-Regulation (EU) No 1177/2010 concerning the rights of passengers when travelling by sea and inland waterway whose ex-post evaluation is presented in this report (hereafter “the Regulation”); and -Regulation (EU) No 181/2011 concerning the rights of passengers in bus and coach transport. After the adoption of passenger rights Regulations for all four transport modes, the Commission published in 2011 its Communication entitled a "European vision for Passengers: Communication on passenger rights in all transport modes" where the three key principles for passenger rights were identified: the non-discrimination of passengers; the availability of accurate, timely and accessible information to all passengers; and an immediate and proportionate assistance, underpinned by the so-called ten core passenger rights (presented in Table A6.5 in Annex 6). The framework also intended to contribute to a level playing field for transport operators within and across modes, through creating a European standard for passenger protection. As a result, EU passenger rights apply to a growing market of around 450 million citizens performing several billions of journeys every year for private or business purpose. In this context, the passenger protection has become a cornerstone of EU transport policy, building on international conventions and the general consumer protection framework of the Union. In its recent Sustainable and Smart Mobility Strategy, the Commission observed that “EU passenger rights should be better implemented, clearer for both carriers and passengers, offer adequate assistance, reimbursement, possibly compensation when disruptions arise, and appropriate sanctions if the rules are not properly applied” and expressed its intention to take actions to achieve this aim. This exercise is also in line with the recommendations presented by the European Court of Auditors in their special report on passenger rights in November 2018. 1.2. Purpose and scope of this evaluation The purpose of this ex-post evaluation is to assess whether Regulation (EU) No 1177/2010 has delivered the intended rights to passengers in waterborne transport, in accordance with the Commission’s Better Regulation Guidelines. This evaluation was initiated in 2019, more than eight years after its adoption, and more than six years after it started to apply (18 December 2012). The evaluation covers the period from 18 December 2012 until February 2020. The scope of the study does not include the impact of the COVID-19 pandemic in 2020 and 2021. However, when stakeholders have made specific comments or where effects are already clear and unambiguous, these points are presented in the support study and also in this evaluation. This evaluation, building inter alia on the evaluation support study (hereafter “the support study”) carried out by an external contractor, and the 2016 Commission’s report on the application of the Regulation , assesses the actual performance of the Regulation in terms of its: -Effectiveness: analysing the progress made towards achieving the objectives of the intervention, looking for evidence of why, whether or how these changes are linked to the EU intervention; -Efficiency: looking closely at both the costs and benefits of the EU intervention as they accrue to different stakeholders, identifying what factors are driving these costs/benefits and how these factors relate to the EU intervention; -Relevance: looking at the objectives of the EU intervention being evaluated and see how well they (still) match the (current) needs and problems; -Coherence: looking at how well the intervention works: i) internally and ii) with other EU interventions and international obligations; and -EU added value: considering arguments about the value resulting from EU interventions that is additional to the value that would have resulted from interventions initiated at regional or national levels by both public authorities and the private sector. The geographic scope of the study includes the EU 27 Member States, Iceland, Norway and the United Kingdom. It is now appropriate to subject the Regulation to a full evaluation to determine whether it has reached its intended purposes and whether it continues to be justified in terms of the five criteria listed above. 2. Background to the intervention 2.1. Specific context of waterborne passenger rights Waterborne services within the scope of European passenger rights legislation comprise sea and inland waterway ferry and cruise services. Waterborne transport is heavily concentrated among Member States with main sea and inland waterways, particularly among Member States with well-populated islands. At the same time, traffic is concentrated between major ports: services between the top 20 European ports accounted for nearly 40% of the total number of passengers as also visible in the map below showing ferry services in 2017.

With respect to seaborne passenger traffic, the number of passengers embarking and disembarking at the ports of the EU27 Member States as well as Iceland, Norway and the United Kingdom reached almost 451 million passengers in 2019, equating to 225 million passenger journeys. Denmark, Greece, Italy and Spain account all together for more than half of the EU seaborne passenger traffic. Because they are landlocked, Austria, Czechia, Hungary, Luxembourg and Slovakia do not have any seaborne passenger traffic. After a decrease between 2010 and 2014, the total volume of passengers recovered between 2016 and 2019 as illustrated in figure 2 below. Source: Support study, Paragraph 1.20, analysis of Eurostat data. The vast majority (96,4%) of seaborne traffic is made on ferry services, whilst cruises account for 3,3% of the total number of passengers only. Most ferry services are operated privately, on a commercial basis or operated under public service obligations (PSO) contracts. Domestic ferry services dominate intra-EU maritime passenger transport: 61% of seaborne passenger transport within the European Union is operated between ports situated in the same Member State, while cross-border seaborne passenger traffic amounts to 39%. With respect to inland waterway passenger traffic, comprising mainly river cruises and ferry transport, data is limited. Industry sources indicate that river cruises carried 1.62 million passengers in 2019 (of which 44% to 49% came from non-European countries) with 75% of the total traffic concentrated on Central European waterways (e.g. Danube, Main-Danube canal, Elbe-Oder, Main and Rhine). 2.2. Description of the intervention and its objectives Prior to the introduction of the Regulation at EU level legislation granted protection to passengers in the event of death of or personal injury to a passenger and the loss of or damage to luggage in an accident on the basis of Regulation (EC) No 392/2009, which implemented certain provisions of the 1974 Athens Convention in EU law relating to the carriage of passengers and their luggage by sea (as amended by the 2002 Protocol). At national level the situation was complex. In some Member States national legislations did not protect passengers at all. If there was any legislation at national level, the rights protecting PRM passengers (non-discrimination and assistance), were not in the same piece of legislation as the rights protecting passengers in case of transport disruptions.

In addition, the level of protection granted by national legislations varied Member State by Member State: (a)prior to the introduction of the Regulation, national legislation protecting PRM waterborne passengers was in force in five Member States (Denmark, Finland, Italy, Spain and Sweden) as well as in Norway granting PRM similar levels of passenger rights as they currently receive from the Regulation. In nine Member States (Austria, Estonia, France, Germany, Ireland, Lithuania, Malta, Netherlands and Portugal), as well as in the United Kingdom, national legislation granted some rights to PRM before the introduction of the Regulation; however, this national legislation was not as comprehensive as the Regulation. No protection was available in two Member States (Cyprus and Poland). There is no information on the situation in the remaining eleven Member States (Belgium, Bulgaria, Croatia, Czechia, Hungary, Latvia, Lithuania, Luxembourg, Romania, Slovakia, Slovenia) nor in Iceland. (b)regarding rights of passengers in the event of cancellation or delay, prior to the introduction of the Regulation the national legislation of six Member States (Denmark, Finland, Greece, Italy, Portugal and Sweden) as well as in Norway granted passengers similar levels of rights as they currently receive from the Regulation. Additionally, further six Member States (Estonia, Germany, Ireland, Netherlands, Poland and Spain) and the United Kingdom granted some rights to passengers in the event of disruption before the Regulation was introduced, however these legislations were not as comprehensive as the Regulation. No protection was available in three Member States (Cyprus, France and Malta), while there is no information available related to the national legislation for the remaining twelve Member States (Austria, Belgium, Bulgaria, Croatia, Czechia, Hungary, Latvia, Lithuania, Luxembourg, Romania, Slovakia and Slovenia) and Iceland. The Commission’s impact assessment (IA) accompanying the 2008 legislative proposal had identified four areas in which rights needed to be strengthened: -the rights of PRM; -quality of service; -assistance to passengers in the event of delay or cancellation; -the right to information and non-discrimination issues.

The specific objectives of the intervention included: -asserting the principle of non-discrimination and assistance to PRM; -asserting the principle of assistance in the event of travel cancellations and delays; -ensuring a level of minimum quality standards of services and defining information obligations; -setting up a procedure for handling complaints; and -ensuring appropriate enforcement of applicable legislation. The impact assessment identified a number of issues: passengers in general often received poor quality assistance in the event of a travel disruption (notably delays and cancellations), information to passengers was not sufficient, there were no authorities at national level to monitor compliance with the Regulation, PRMs needed more accessible ports and accessible information and assistance to enable them to use waterborne transport. The final text was adopted on 24 November 2010 and it contained moderate changes compared to the Commission’s original proposal: -the Commission’s proposal did not contain any limitation based on the size of the ship, while the Regulation excludes ships certified to carry up to 12 passengers; -compared to the Commission’s proposal the right to information was reinforced by introducing the obligation to provide such information in accessible formats. Lastly, the time thresholds for the respective rights were aligned to 90 minutes, although the Commission’s proposal had foreseen a threshold of 60 minutes for the right to assistance and a threshold of 120 minutes for re-routing and reimbursement.

The Regulation has put in place the following measures aimed to address the identified needs and to achieve the specific objectives: obligations on carriers to adopt and apply non-discriminatory transport conditions, to provide assistance to PRMs in order to enable them to use waterborne transport, to provide assistance to all passengers in case of cancelled or delayed departures and to provide them with compensation under certain circumstances, re-route or reimburse them in case of cancellation or long delay, to publish and apply quality standards of services, to provide information to passengers, including PRM, and to establish a harmonised procedure to allow passengers to submit complaints to NEBs in case they consider that their rights are breached. The Regulation was in particular meant to contribute to reducing the negative impact of travel disruption on users of waterborne transport and to improving service quality for passengers. It was also intended to contribute to the creation of a level playing field for waterborne operators in the EU and to provide a European standard of passenger protection. The Regulation requires NEBs to take the measures necessary to ensure compliance with the Regulation. These measures include imposing effective, proportionate and dissuasive penalties on operators in case of infringements. Other measures necessary to ensure compliance with the Regulation could for example include the promotion of passenger rights, the inspection of operators and monitoring of their websites, as well as regular contact with the industry and passenger (incl. PRM) organisations. The Regulation was designed to address these issues as described in Table 1. This table summarises specifically the structure of the Regulation and the subject of its Articles. Chapter Subject of Articles Content of Articles I General provisions 1 Subject matter 2 Scope 3 Definitions 4(1) Tickets and non-discriminatory contract conditions Carriers shall issue a ticket to the passenger. A ticket may be issued in electronic format. 4(2) Contracts and tariffs may not discriminate based on the nationality or place of establishment of the carrier/ticket vendor. 5 Other performing parties The carrier/travel agent/tour operator is liable for the acts and omissions of other performing parties (other carrier, ticket vendor etc.) 6 Exclusion of waiver Obligations to passengers shall not be limited or waived. II Rights of persons with disabilities and persons with reduced mobility or disability (PRMs) 7 Right to transport Right to transport of PRM: A reservation, provision of a ticket or taking on board may not be refused or subject to additional cost. 8(1) Exceptions and special conditions Right to transport may be refused if necessary to meet safety requirements or the design of the vehicle or the infrastructure makes it physically impossible. 8(2) In case of refusal, carriers, travel agents and tour operators shall inform the person concerned about any acceptable alternative services operated by the carrier. 8(3) In case of refusal, the person concerned shall be offered the choice between reimbursement or re-routing. 8(4) In case of refusal to transport the PRM, the carrier may request the person concerned to be accompanied by another person who can provide the assistance required and who shall be transported free of charge. 8(5) In case of recourse to paragraphs 8(1) and 8(4), the person concerned shall immediately be informed of its reasons and, upon request, in writing within 5 working days. 9 Accessibility and information Carriers and terminal operators shall establish non-discriminatory access conditions for the transport of PRM and such access conditions shall be made publicly available and physically distributed at the request of the passenger whilst assistance shall be confirmed by any means available 10 Right to assistance in ports and on board ships Carriers and terminal operators shall provide assistance free of charge to PRM 11 Conditions under which assistance is provided Carriers and terminal operators shall provide such assistance provided the request is notified in advance and the person presents herself on time. 12 Reception of notifications and designation of meeting points Carriers, terminal operators, travel agents and tour operators shall take all measures necessary for the request for and reception of notifications and such notification shall be transferred without delay while a meeting point for PRM shall be designated 13 Quality standards for assistance Terminal operators and carriers operating passenger services with a total of more than 100 000 commercial passenger movements during the previous calendar year shall set quality standards for PRM assistance 14 Training and instructions Carriers or terminal operators shall establish disability-related training procedures, including instructions, for their personnel, providing direct assistance to PRM and their personnel who are otherwise responsible for the reservation and selling of tickets or embarkation and disembarkation 15 Compensation in respect of mobility equipment or other specific equipment Compensation for loss of or damage to mobility equipment equal to the cost of its replacement or repair. Every effort shall be undertaken to rapidly provide temporary replacement equipment or devices, with similar technical and functional features. III Obligations of carriers and terminal operators in the event of interrupted travel 16 Information in the event of cancelled or delayed departures In the case of reasonable expectation of a cancellation or a delay in departure, passengers shall be informed by the carrier or by the terminal operator as soon as possible or in any event no later than 30 minutes after the scheduled time of departure as well as of alternative connections, in accessible formats. 17 Assistance in the event of cancelled or delayed departures In the case of reasonable expectation of a cancellation or a delay in departure for more than 90 minutes, passengers shall be offered free of charge snacks, meals or refreshments and, where necessary, free of charge adequate accommodation on board, or ashore, and transport to and from the port terminal, which may be limited to EUR80per night, for a maximum of three nights. 18 Re-routing and reimbursement in the event of cancelled or delayed departures In the case of reasonable expectation of a cancellation or a delay in departure for more than 90 minutes or in the case of cancellation and delay, the passenger shall immediately be offered the choice between reimbursement within 7 days, or re-routing. 19 Compensation of the ticket price in the event of delay in arrival In the case of delay in the arrival at the final destination as set out in the transport contract, passengers may request compensation amounting to at least 25 % of the ticket price, without losing the right to transport 20 Exemptions Exemptions of Articles 17, 18 and 19 for open tickets, travel passes or season tickets, information before the purchase of the ticket or cancellation or delay caused by the fault of the passenger and delays caused by weather conditions endangering the safe operation of the ship or natural disasters. 21 Further claims No preclusion of damages in accordance with national law, including under Directive 90/314/EEC. IV General rules on information and complaints 22 Right to travel information Passengers shall be provided with adequate information throughout the travel. 23 Information on passenger rights Passengers shall be provided with information regarding their rights at the latest on departure. 24 Complaints Carriers shall set up or have in place a complaint handling mechanism. A passenger shall submit a complaint within two months, and receive the reply within two months. V Enforcement and national enforcement bodies (NEBs) 25 National enforcement bodies Provisions on national enforcement bodies. A passenger may submit a complaint to the NEB or other appropriate designated body. 26 Report on enforcement NEBs shall publish reports on enforcement every two years. 27 Cooperation between enforcement bodies Exchange of information on their work and decision-making principles and practice 28 Penalties The Member States shall lay down rules on penalties applicable to infringements of the provisions of this Regulation VI Final provisions 29 Report Report by Commission to European Parliament and to the Council on the operation and the effects of the Regulation 30 Amendment to Regulation (EC) No 2006/2004 Amendment in the Annex of Regulation (EC) No 2006/2004 31 Entry into force 20th day following its publication and application starting on 18 December 2012 Source: Regulation (EU) No 1177/2010, analysis based on support study. 2.3. Baseline and points of comparison The purpose of the analysis of the evaluation baseline was to model and analyse the impact of policy changes brought by the Regulation. As such, it captures how waterborne passenger rights and the industry would have evolved, had the Regulation not been adopted. The analysis aims at capturing the change that the intervention of the Regulation has brought over time, by comparing the actual recorded performance against a potential baseline scenario that would have happened without policy intervention. The reference year is 2012 for the Regulation. For the purposes of modelling, it was assumed that it was in force from 1 January 2013 as the baseline is modelled on an annual timeline. To show “from 2012 until today what the situation would have been, had the Regulation or any other EU-level legislation not been implemented”, the following was considered: 1.the situation regarding passenger rights in 2013 in the EU 27 Member States, as well as Iceland, Norway and the United Kingdom, for passengers within the scope of the Regulation;

2.the assumption that the legal framework in each Member State would have remained intact if the Regulation had not been introduced and that no harmonised rules across Member States would have been developed; and 3.the application of consumer law in each Member State. The situation before the introduction of the Regulation was analysed and it was assumed that the resulting level of passenger rights in each Member State remained constant in the no policy intervention scenario. It was assumed that other variables, such as total passengers travelling from and within each Member State, remained the same across both scenarios. The situation across both scenarios between 2013 and 2018 was then evaluated. Passenger rights in the event of major disruption Since no Member State has exempted PSO services from the scope of the Regulation, all waterborne passengers have been in scope of the Regulation since its entry into force in December 2012. In 2012, before the Regulation became applicable, approximately 31 million passengers (15%) had no rights in the event of a major disruption, a further 49 million passengers (24%) were covered by some rights, which were not as comprehensive as those established by the Regulation. The remaining 122 million passengers (61%) were protected by national legislation that provided them a level of coverage and protection comparable to those provided under the Regulation. Assuming that the provision of rights available prior to the entry into force of the Regulation would have remained constant in Europe, the number of passengers, with no rights would have risen to 37 million (17%) by 2019, whilst those receiving some rights would have risen to 57 million (26%). 131 million (58%) would have had rights comparable to those provided under the Regulation, as shown in Figure 3 below. Source: Support study, Paragraph 3.195, Baseline analysis. Rights of passengers with disabilities and passengers with reduced mobility A number of Member States had adopted legislation concerning waterborne transport of PRM prior to the Regulation. Prior to the introduction of the Regulation in 2012, the support study estimated that approximately 56.000 (5%) of passengers who would have requested assistance had no such rights, whilst a further 565.000 (51%) were covered by some rights, albeit not as comprehensive as those provided under the Regulation. The remaining 488.000 (44%) of passengers with disabilities or with reduced mobility were eligible for rights, providing a similar level of protection as the Regulation. However, even for those PRM already benefitting from some rights established at the national level, at the time the Regulation was drafted, it remained unclear whether, and to what degree, they were able to demand access to maritime transport and assistance. National legislation specifically varied in scope and content, so that disparate rules applied to international routes, which resulted in difficulties for PRM when travelling across borders by sea. Had this situation remained, the protection provided to PRM would have varied considerably throughout the European Union, potentially reducing the confidence of PRM passengers when travelling. After the entry into force of the Regulation, all passengers requesting PRM assistance in the European Union could rely on a pan-European framework of rights, improving their access to travel opportunities and providing a right to assistance. Hence, approximately 600.000 passengers witnessed an improvement in the quality of rights as a consequence of the Regulation, whilst a further 85.000 passengers were given access to rights were previously they had none. By 2019, approximately 800.000 passengers experienced an improvement in rights available and approximately 200.000 passengers were able to benefit from rights when prior to the Regulation they had none, as shown in Figure 4 below. Source: Baseline analysis of support study, Paragraph 3.199.

3. Implementation / State of Play 3.1. Description of the current situation

The Regulation is applicable to most ferry services departing from or arriving at EU ports: -it applies in respect of passengers travelling on passenger services (ferries) where the port of embarkation is situated in the territory of a Member State; and -it also applies on passenger services where the port of embarkation is situated outside the territory of a Member State and the port of disembarkation is situated in the territory of a Member State, provided that the service is operated by a Union carrier. The Union carrier as defined under Article 3(e) of the Regulation is a carrier established within the territory of a Member State or offering transport by passenger services operated to or from the territory of a Member State, which is a specifically broad notion compared to passenger rights in other modes, encompassing all passenger services operating from a third country to a port within the European Union. In addition, the Regulation applies to cruises where the port of embarkation is situated in the territory of a Member State with the exception of Articles 16(2) on information, Article 18 on re-routing and reimbursement, Article 19 on compensation and Articles 20(1) and (4) on exemptions. The Regulation does not apply in respect of passengers travelling: -on ships certified to carry up to 12 passengers; -on ships which have a crew responsible for the operation of the ship composed of not more than three persons; -on ships where the distance of the overall passenger service is less than 500 metres, one way; -on excursion and sightseeing tours other than cruises; and -on ships not propelled by mechanical means as well as original and individual replicas of historical passenger ships. Additionally, cruise services of less than two overnight stays on board are also out of the scope of the Regulation. In waterborne transport and from a broad perspective, passenger rights are protected by different pieces of legislation, including: -Passenger rights legislation as such, i.e. Regulation (EU) No 1177/2010 concerning the right of passengers when travelling by sea and inland waterway; -Other rights stemming from transport related regulations, including Regulation (EC) No 392/2009 on the liability of carriers of passengers by sea in the event of accidents; -Consumer rights in the broader perspective, distinguishing between instruments regulating rights, including in particular Directive (EU) 2015/2032 (the “Package Travel Directive”) which becomes applicable where carriage of passengers by ships is combined with other travel services, and enforcement mechanisms as set out in Regulation (EU) No 2017/2394 on Consumer Protection Cooperation (CPC) which has applied since January 2020, repealing Regulation (EC) No 2006/2004 on enforcement of consumer protection laws. In addition, waterborne passenger rights legislation interfaces with horizontal consumer protection rules or schemes such as Alternative Dispute Resolution (ADR) bodies, Online Dispute Resolution (ODR) bodies and European Consumer Centres (ECCs). In 2016, the Commission published a report on the application of the Regulation. In this report, the Commission did not identify evidence supporting any amendment of the Regulation’s provisions. The report identified some issues and put forward a list of non-legislative initiatives to improve the application and enforcement of the Regulation. In this context, the Commission decided to take the following measures: (1) actions to raise awareness of passengers’ rights and operators’ obligations, including information campaigns, (2) actions to improve enforcement through regular contacts with NEBs and monitoring of their activities, and (3) actions to ensure the uniform application of the Regulation, including by providing non-binding guidance and clarifications during the annual expert group meetings with the representatives of NEBs and stakeholders, and through written correspondence with NEBs, stakeholder associations, individual operators etc. Regarding the awareness of passenger rights, the Commission has included waterborne passenger rights in its information campaigns since the Regulation became applicable. Regarding the awareness of passenger rights, the Commission started carrying out information campaigns aimed at raising awareness among citizens in 2009. The first campaign (2010-2012) was organised for air and rail passenger rights, while a second one launched in 2013 concerned all transport modes with passenger rights. Online communication campaigns (online advertising) have proved the most cost-effective means during the last years (campaigns in 2016-2017, 2019, 2020 and 2021), which was reflected in a steep increase of visits of the relevant Your Europe passenger rights webpages.

The Commission regularly conducts Eurobarometer surveys on passenger rights. The results of the latest survey showed that 45% of actual sea and inland waterway passengers are aware of their passenger rights, which is lower compared to air transport (49%), but higher compared to rail (43%) and bus and coach transport (39%). In addition, among respondents using waterborne transport, only 7% believe that they are very well informed of their rights and 24% consider themselves fairly well informed. The Commission holds meetings with experts from the NEBs to exchange experiences and clarify the interpretation of the Regulation. The main points of discussion have concerned the state of play with the enforcement and legal interpretation of the Regulation. Other issues of attention included addressing the low awareness of passengers about their rights and improving the processing of complaints through a standard complaint form. In the context of COVID-19, the Commission published Interpretative Guidelines on the passenger rights Regulations and a Recommendation on vouchers. It also updated the websites of Your Europe and added information on the Coronavirus Response website. In July 2020, the Commission launched infringement proceedings against two Member States for failure to comply with EU rules protecting waterborne passenger rights. The procedure has been closed in October 2020 because the Member States concerned amended their laws. In August 2020, the Commission started informal dialogues with all Member States and the United Kingdom regarding the application of passenger rights in all modes of transport in the context of COVID-19 and the obligations of NEBs to report on their activities. These procedures are still ongoing. 3.2. Member States implementation and monitoring The choice to intervene at EU level through a Regulation had a direct impact on the extent of the implementation obligations for Member States. Member States were required to designate a new or existing body for the enforcement of the Regulation as a NEB, to inform the Commission thereof and to lay down effective, proportionate and dissuasive sanctions for infringements of passenger rights. Member States are required to inform the Commission of the body or bodies designated in line with Article 25(2) of Regulation (EU) No 1177/2010, which the Commission publishes on a designated platform. It can be summarised that the current situation of NEBs is the following: -in 2020 there were 45 NEBs (including the Icelandic, Norwegian and the United Kingdom NEBs); -most States have a single national NEB for all waterborne services, and in several of them, the same body also enforces passenger rights for other modes of transport. -Some States have designated more than one NEB at national or regional level. The Regulation grants passengers the right to submit complaints to a NEB or to another body designated. NEBs may require passengers, as a first step, to submit the complaint to the carrier or port operator. Currently 19 Member States (Austria, Croatia, Cyprus, Denmark, Estonia, Finland, Germany, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia and Spain) and Norway as well as the United Kingdom require passengers to submit their complaint to the carrier or port operator first and only turn to the NEB if the carrier or port operator does not give a satisfactory answer to the complaint or does not reply to the complaint at all. There are significant differences between the roles of the NEBs. It could be highlighted in particular that: -Most States have a single national NEB, while some have designated more than one NEB, at the national, regional and local level or dealing with international/domestic affairs e.g. in Poland, where each regional NEB has a jurisdiction covering ports in its respective region; -Most NEBs have the competence gathered in one NEB, whilst other have different authorities for different aspects such as the NEBs in Denmark and Hungary, where different authorities deal with the compliance with the Regulation by ports and by carriers, respectively, and in the Slovenian and Swedish NEBs, where separate NEBs deal with the enforcement of the Regulation’s provisions related to the rights of PRM; -Some NEBs handle individual complaints and others do not as is seen in Germany, where the NEB does not help individual passengers to receive redress as a result of infringements of the Regulations, but only deals with systemic monitoring and enforcement of the Regulation; -Six NEBs act as both NEBs and ADR (Austria, Denmark, Estonia, Latvia, Romania and Slovakia). Overall the roles of the NEBs (including complaint handling, monitoring and enforcement) are organised quite differently across the EU. The Regulation requires that passengers have the possibility to submit complaints to a NEB or to another body designated by a Member State, although Member States may require that the passenger must, as a first step, submit the complaint to the carrier. This means that the role of complaint handling may be performed by the carrier, a NEB, a dedicated complaint-handling body, a body providing alternative dispute resolution (ADR) or any other body.

Complaint handling Different NEBs deal with a varying number of complaints. It must however be noted that different NEBs report on the complaints they receive differently: some include statistics and report complaints that are within the scope of the Regulation and others report any complaint received for any reason (e.g. complaints about the crew being rude to the passenger, theft of baggage, etc.). The overall number of complaints appears to be growing, which might be due to an increase in the number of passengers travelling, more breaches of the Regulation, better awareness of the right to complain, or more willingness to submit complaints. However there are still a large number of NEBs not receiving any complaints. The exact reasons for the complaint level are impossible to identify due to limited data available, in particular as regards the motivation for a passengers decision to complain or not to complain. The total number of complaints received (approximately 560 in 2019 across all Member States as well as Iceland and the United Kingdom) is low, equating to one complaint per million waterborne passengers transported. Figure 5 shows the average number of complaints reported by NEBs in years in which they provided data. Complaints are heavily concentrated among States with higher levels of waterborne passenger traffic (in particular Italy and Greece). On the other hand Czechia, Cyprus, Hungary, Latvia, Slovenia and Slovakia did not report any complaints between 2013 and 2019. The preliminary numbers for 2020 show the same trend of a growing number of complaints in the Member States with much waterborne traffic and few to none complaints in other States, however it is still to be determined how COVID-19 has affected these numbers and passenger behaviour. Source: NEBs providing data for at least one year 2010 to 2019, Support study, Paragraph 3.9. Source: Support study analysis of stakeholder consultation, Paragraph 3.14. There has been no emergence of claim agencies to handle complaints from passengers against waterborne carriers on the basis of the Regulation contrary to what has been observed in air transport for instance. Monitoring activities The Regulation sets a general obligation upon the NEBs to take the measures necessary to ensure compliance with the Regulation. The Regulation offers flexibility in the way NEBs may take action to monitor the implementation of the rules by carriers and port infrastructure managers. Some NEBs report that they take a proactive approach to the protection of passenger rights and the monitoring of how the Regulation is applied, while others have reported to do little beyond complaint handling. In concrete terms, most of the 25 (out of 30) States that participated in the stakeholder consultation indicated that they, with a significant degree of variety, carry out one or more of the following monitoring activities: -monitoring of the homepages of waterborne carriers (e.g. to ensure that carrier’s general terms and conditions are not contrary to the Regulation) and ports and terminals (e.g. to check whether their quality standards are published); -audits of ports and terminals and some also carriers; -targeted inspections of carriers or ports and terminals; -contact with port and terminal operators and carriers (in the form of meetings or by written correspondence) to inform them of their obligations and ensure that they comply with them; -cooperation with organisations of persons with disabilities to gather information about the application of the Regulation (to complement the information they receive from the few formal complains PRM submit to them); -collection of data from carriers or ports and terminals concerning the application of the Regulation (by two NEBs at least).

Based on their monitoring activities, NEBs are supposed to be able to identify carriers’ recurrent non-compliance with the applicable rules and to take the necessary measures ensuring compliance with the Regulation, as appropriate. From the information provided by NEBs it is clear that the passenger focused maritime transport varies a lot between Member States and NEB monitoring activities like so. It is worth recalling that, in the context of the support study, the NEBs that participated provided information about their monitoring activities for the period 1 March 2013 – 31 December 2019, as summarised in Table A6.2 in Annex 6. Sanctions Only NEBs from four Member States (Croatia, Greece, Italy and Spain) indicated that they imposed sanctions until 2019: the Croatian NEB imposed two sanctions, the Greek NEB imposed 25 sanctions, Italy and Spain imposed 60 sanctions each. The amount of sanctions differs a lot between NEBs with e.g. the total amount of penalties imposed by the Greek NEB was EUR 6,530 compared to total amount of EUR 877,495 which the Italian NEB imposed on operators as penalties. The minimum amount of penalty imposed by the Greek NEB was EUR 50 compared to the minimum EUR 500 penalties imposed by the Italian and Spanish NEBs. The maximum amount of penalty imposed was EUR 1,000 in case of the Greek NEB and EUR 106,300 by the Italian NEB. NEBs from 17 other countries (Austria, Belgium, Czechia, Denmark, Estonia, Finland, Germany, Ireland, Latvia, Malta, Poland, Portugal, Romania, Slovakia, Sweden, United Kingdom and Iceland) indicated that they did not impose any sanctions. Litigation before national courts The support study found that there is very little litigation based on the Regulation before national courts and tribunals. Litigation before the Court of Justice of the European Union In September 2021, the Court of Justice of the EU (CJEU) delivered its first preliminary ruling related to the Regulation (C-570/19). 3.3. Major recent developments Since the Regulation began to apply in 2012, there have been two major changes to the EU waterborne market with potential implications for passengers’ needs. Firstly, along with the increasing digitalisation in the sector, carriers sell a majority of tickets and provide much information online or via an app, rather than at ports. Since 2010, there has been strong growth in online bookings and the use of IT-tools to plan journeys has increased the demand for real-time information available to passengers. This trend towards increasing digitalisation and greater use of online and app-based services by consumers reflects global developments in information and communication technology affecting the EU economy as a whole. In many industries, including the waterborne market, digitalisation has improved services for the majority of passengers but has resulted in the exclusion of citizens who have no access to new technologies, unable to use them or for whom the digital information is not provided in an accessible format. This was confirmed by many stakeholders, including operators, NEBs and passenger groups. Secondly, the unexpected outbreak of COVID-19 caused disruptions in waterborne traffic and made the health aspects of travel much more important for passengers. It also forced NEBs to take swift action with regard to the provision of information to passengers and ensuring effective reimbursements. Associations representing operators indicated to the Commission that reimbursement of passengers in case of cancelled services by the operators put certain carriers in a very difficult financial situation. However, they did not quantify this issue during the stakeholder consultation. Apart from these changes occurring in several sectors, no specific changes to the waterborne market have been observed.



4. Methodology 4.1. Short description of methodology The evaluation of the Regulation started with the publication of a roadmap on 11 July 2019 and was overseen by an Inter-Service Steering Group (see details in Annex 1). It builds on the outcome of the public consultation conducted from 3 July 2020 to 23 October 2020, and, to a large extent, on the support study carried out by an external contractor for the Commission between February 2020 and July 2021. The support study relied on a combination of sources and methods, including desk research and extensive stakeholder consultation. The support study findings are supplemented by additional information gathered by the Commission during its monitoring of the Regulation’s implementation across Member States, from issues raised by NEBs at the Commission’s annual expert group meetings or at various meetings with stakeholders in Brussels or during missions in Member States, as well as from individual complaints received from people affected by the Regulation. This evaluation is based on the collection and detailed analysis of published pan-European data and information from stakeholders and other industry sources over a two-year period.

The support study referred to above was based on: -Analysis of the public consultation responses; -Targeted stakeholder consultation, via questionnaires and interviews; -Desktop research; -Three case studies; -Country fiches developed for all EU27 Member States, Iceland, Norway and the United Kingdom; -A participatory workshop with selected stakeholders; -Development of a baseline position; and -A cost-benefit analysis. The stakeholder consultation targeted the following six stakeholder groups: -passenger organisations, including representatives of persons with disabilities; -NEBs; -ferry, cruise and inland waterway operators and their associations; -port operators and their association; -ADR bodies and ECCs; and -other relevant industry associations (e.g. travel agents). A cost-benefit assessment was carried out, to estimate the costs and benefits accrued as a result of the Regulation. The targeted questionnaires formed a good basis for the collection of information for this task, supplemented by estimations where necessary to fill the gaps. The methodology that was applied for this assessment is the Standard Cost Model (SCM), which allows to address the costs of the Regulation for Member States (NEBs), industry stakeholders and passengers. It allowed for the quantification of actual costs (i.e. financial or monetised time costs) resulting from the requirements of the Regulation. 4.2. Limitations and robustness of findings While Eurostat has data related to maritime passenger transport in the EU based on figures communicated by Member States, there is little accurate and up-to-date information on the particularities of the market affected by the Regulation and the specific profile of passengers benefitting from it (e.g. there is no information on the number of PRM travelling by waterborne transport or passengers travelling with their cars). Consequently, it is difficult to quantify the benefits of the legislation with any precision, although costs and benefits have been quantified where possible. During the evaluation, inputs from a range of stakeholders were gathered: NEBs, passenger organisations (including PRM organisations), carriers, ports and their organisations, ADRs, etc. including from NEBs. In addition, the biennial activity reports of NEBs – and the homepages of major European carriers were analysed, together with data from recognised industry sources.

However, carriers from the Baltic and ports from Mediterranean region were underrepresented in the stakeholder consultation. In addition, some of this information was provided in the context of the support study on a confidential basis. Furthermore, quantity and quality of data was limited in several instances, for example sources do not always differentiate between cruise and non-cruise passengers and there is very little information available on passengers travelling on inland waterways. Also, the number of passengers requiring assistance was not recorded. In these instances, it was necessary to derive assumptions from a combination of data. Further appropriate assumptions, based on information provided during the stakeholder consultation and industry press articles, were used to make up for a relatively low availability of data. When data directly related to the waterborne industry were not sufficient to build these assumptions, e.g. on PRM, more robust data from the support study to the ex-post evaluation of Regulation (EC) No 1107/2006 was incorporated.



5. Analysis and answers to the evaluation questions This chapter presents the findings on how the Regulation performs against the five key criteria of effectiveness, efficiency, relevance, coherence and EU added value. 5.1. Effectiveness Evaluation questions 5.1.1. What progress has been made towards the general objective of ensuring an equivalent level of protection and assistance to passengers travelling by sea and inland waterway transport throughout Member States? To what extent have the measures adopted in the Regulation ensured the same level of passenger rights protection across the EU? The objective of the Regulation is to ensure a high level of protection for passengers, comparable to the level of protection in other modes of transport. This objective is reflected in the preamble of the Regulation, where it is recognised that the maritime and inland waterway passenger is the “weaker party to the transport contract” and that all passengers should be granted “a minimum level of protection” within the scope of the Regulation covering most types of waterborne services within the European Union. The Regulation granted harmonised substantive rights to passengers travelling throughout the Member States. As mentioned earlier, in some Member States national legislation did not grant rights to waterborne passengers, and there were significant differences between the levels of national protection of waterborne passengers. The comprehensive scope of the Regulation contributes to the general objective of the Regulation. In particular as no major exemptions were made. Whilst Article 2(4) of the Regulation permits Member States to exempt services covered by PSO from the application of the Regulation, provided that the rights of passengers under the Regulation are comparably guaranteed under national law, this exemption has not been used in any Member States. This contributes significantly to an equivalent protection of passengers. There are significant variations between the NEBs powers to enforce the Regulation and their approach to monitoring and sanctioning. In addition, many NEBs decisions related to complaints are not legally binding. As a result, the Regulation so far did not ensure in practice the same level of passenger protection across the EU. However, data on monitoring and enforcement is very limited to provide a more detailed assessment on the differences across Member States. There are a few external circumstances of the waterborne sector which can significantly affect the implementation of waterborne passenger rights: -Vessel accessibility varies across operators and it affects whether PRM can use the respective waterborne services: usually there is a strong correlation between the age of a vessel and its accessibility among others because Directive 2009/45/EC on safety rules and standards for passenger ships establishes requirements for certain categories of ships which were built later than 2004. Consequently, it can be very important from the point of view of accessibility whether the ship was built before or after this date. In addition, accessibility of different ports also differs and accessibility of ports is not regulated neither by this Regulation nor any other EU legislation; -Services offered, frequency and the number of operating carriers vary significantly by route, and this can limit the scope for offering passengers re-routing options with comparable conditions; and -Terminal and port facilities differ across Member States and at specific locations, affecting the extent to which passengers, particularly PRMs, are provided with assistance and information. As regards service offers, passengers not travelling with their cars or by coach (the so called “foot passengers”), are not allowed on services operated by a number of carriers, including those operating on some of the most important routes in Europe. It is unclear why operators impose these restrictions, which tend to be route- or timetable-specific. The restrictions may reflect a lack of port handing services or a lack of availability of customs or immigration services able to handle this category of passengers. In practice, foot passengers are mostly travelling on rural services or on those operating to tourist destinations. 5.1.2. What progress has been made towards the specific objective of ensuring that: (a) Non-discriminatory fares and contract conditions apply to every passenger?

The Regulation requires that “without prejudice to social tariffs, the contract conditions and tariffs applied by carriers or ticket vendors shall be offered to the general public without any direct or indirect discrimination based on the nationality of the final customer or on the place of establishment of carriers or ticket vendors within the Union”. Unfortunately the scarce data available on this aspect is not sufficient to make any conclusions related to this aspect. Analysing the available NEB reports covering the years 2013-2018, only one Member State reported complaints concerning discriminatory contract conditions or tariffs, whilst another Member State reported complaints concerning ticket sales. However, in both instances, no additional details on the substance of complaints were provided. NEBs indicated in the stakeholder consultation that they monitor the application of this provision of the Regulation through audits and based on passenger complaints. An analysis of the terms and conditions of the largest ferry operators by revenue in each of the top four Member States by numbers of embarking and disembarking seaborne passengers and has shown that none of these include provisions which discriminate directly or indirectly based on nationality. A random check on fares for specific ferry services available on carriers’ websites confirmed that fares for a given service did not differ between country websites. All carriers consulted indicated that the Regulation has not influenced how they ensure that non-discriminatory fares and contract conditions apply to every passenger. (b) Passengers are informed of their rights and are able to exercise them by complaint procedures set up by carriers? The text of the Regulation is generally available on operators’ and NEBs’ websites as well as on the dedicated website of Your Europe. In addition, passengers can access information related to cancellations, delays, re-routing, complaint handling and reimbursement more easily thanks to increasing reliance by operators on information technology which leads to a more effective contact with passengers in case of disruption. As several provisions of the Regulation require carriers and operators to communicate their legal responsibilities to passengers with respect to passenger rights and PRM assistance, communicating information is a broad issue and involves provision of information about rights before, during and after the journey. The only indicator of the increasing awareness of the passenger rights, including the right to complain is the recent increase in the number of complaints submitted to NEBs and ADRs. Although NEBs count and report the number of complaints they receive differently (as mentioned earlier, some NEBs include in their statistics all complaints received while others only include complaints within the scope of the Regulation) and differences with respect to handling complaints can be based on different structures of NEBs and ADRs, an increase in the number of complaints can be measured. The increasing trend in complaints in the countries with the highest level of waterborne traffic does not appear to correlate with the fluctuating traffic levels since 2012, thus suggesting that passengers have become more aware of their rights. It must however be noted that as the number of complaints is low, it is not possible to draw firm conclusions from the analysis. Also, the evidence is insufficient to draw firm conclusions on the degree of compliance with the requirements of the Regulation as the number of complaints may be increasing solely because passengers are more aware of their rights, or alternatively because instances of non-compliance are increasing. It seems from the information gathered by the support study that there are no complaints related to the breach of PRM rights, either because according to PRM representatives PRMs are less likely to complain than other passengers or because NEBs do not need to distinguish between complaints related to PRM rights and complaints related to other passenger rights when registering them. Another reason might be that PRM passengers could be less likely to face some of the issues they experience on other transport modes, especially in case of car ferries which can be accessed by PRM with their own vehicle, thus solving issues of assistance and accessibility when embarking or disembarking the ferry. In any case, as explained above, according to the latest Eurobarometer survey, awareness of waterborne passenger rights is still lower compared to awareness of passenger rights in aviation. Most carriers have indicated that the Regulation has influenced their approach to communicating information. They also indicated that the Regulation has affected their customer care departments, as it was necessary to provide sufficient resources. (c) PRMs have opportunities for waterborne travel comparable to those of other passengers. PRM tend to book their travel in the same way as other passengers and afterwards notify the carrier or terminal operator of their need for assistance. This leads to a cumbersome process for PRM, as the booking for them involves two steps as compared to the one-step process for other passengers. However, it ensures that PRM are not denied boarding. Also, according to the Regulation, pre-notification is not compulsory, ensuring that PRM are not penalised for failing to pre-notify, and that “carriers and terminal operators shall nonetheless make all reasonable efforts to ensure that the assistance is provided in such a way that the person with disability or person with reduced mobility is able to embark, disembark and travel on the ship”. The stakeholder consultation indicates that most NEBs consider that the Regulation has provided PRM with more opportunities for waterborne travel, and that such opportunities are mostly comparable to those of all other passengers. There is evidence suggesting significant room for improvement of the assistance provided to PRM. In particular, the entrance to the port area is often far from the boarding terminal and it is not always clear where assistance is available between the two locations. Although PRM assistance tasks on board vessels and at ports are listed in Annexes II and III of the Regulation, the allocation of responsibilities of PRM assistance between carriers and port operators could be further clarified. Several stakeholders have also noted the critical importance of making both vessels and ports more accessible, which might need investment. Furthermore, whilst the Regulation determines that travel agents and tour operators should communicate the relevant information, it leaves them the choice of liaising with ports or carriers. It is also not clear whether these agents and operators can be relied upon to liaise with one another to ensure that assistance is seamless. Furthermore, unlike in air transport, no specific communication channels exist between agents, ports and operators, which requires them to contact one another using ad hoc channels, based on information available. With respect to the obligation of the Regulation requiring terminal operators and carriers operating port terminals or passenger services with more than 100.000 passenger movements per calendar year to publish quality standards for assistance of PRM (Art. 13 of the Regulation), the support study examined the homepages of several ports and carriers: while only a very limited number of ports and ferry companies published on their website information on such quality standards, all cruise operators examined published such information on their websites. (d) inconvenience to passengers due to cancellation or significant delay is reduced? It cannot be determined whether the obligations imposed by the Regulation on operators have created an incentive to improve reliability and therefore to reduce the number of cancellations or delays, as no quantitative data can be identified on trends in the number of cancellations, the number and duration of delays, or the scale and type of re-routing available. It can however be concluded that the inconvenience to passengers has been reduced as a result of the obligations in the Regulation to reimburse or to re-route in the case of cancellation or significant delay of the service. The Regulation includes multiple provisions in the case of cancellation or delay, notably the obligation to provide information (Article 16), assistance (Article 17), options for re-routing or reimbursement (Article 18), and compensation (Article 19), which must be paid independently of when such cancellation or delay is communicated to passengers. However, according to the Eurobarometer 2019 survey, only 38% of respondents who experienced significant disruptions during their waterborne journeys benefitted from some form of remedy. Re-routing, can be in practice a complex process, as it depends on the service frequency and availability of alternative service providers on different routes, and therefore re-routing options must be established case-by-case. With respect to compensation, a majority of stakeholders during the stakeholder consultation expressed the view that the flat rate of 25 and 50% of the ticket price (depending on the length of delay) were set at appropriate levels. Two NEBs however noted that the time thresholds are longer comparable to those for other transport modes.

In the cruise sector (both maritime and inland waterways cruises), delays tend to be less important during the cruise than delays at the destination, which may lead to passengers missing their land connection. Around 70% of carrier stakeholders participating (8 out of 11) in the consultation consider that the Regulation has not had an impact on carriers’ operating practices. Those carriers indicating that the Regulation impacted their operating practices indicated that this impact did not relate to vessel operations, but rather to investments on notification of information to passengers. (e) Member States and National Enforcement Bodies take the measures necessary to ensure the enforcement of the Regulation? The Regulation relies heavily on NEBs fulfilling their roles effectively, as enforcement is delegated to Member States. At the same time, the Regulation allows flexibility to the Member States to design the enforcement mechanism in the national legislation. As a result, the legal powers and practical capabilities of NEBs towards the enforcement of the Regulation as well as their approach to monitoring implementation and enforcement (among other actions the use of sanctions) vary significantly from one Member State to another, as mentioned in Chapter 3, which may hinder the effectiveness of the Regulation. The low number of complaints filed to NEBs can be explained by different reasons, however it is important to take note of the fact that the evidence available is often insufficient to make any final conclusions on the root cause of the low number of complaints. The following reasons are nevertheless reckoned to contribute to the fact that passengers submit very few complaints: -Many passengers may still not be aware of their rights; -NEBs in certain countries only deal with the systemic enforcement of the Regulation and do not handle complaints of individual passengers; -Passengers in general do not experience many cancellations or delays; -Carriers deliver a high degree of service on the spot, e.g. when a delay occurs or they handle the complaints they receive to the satisfaction of the passenger; -Passengers consider that submitting a complaint to a NEB might not be beneficial to them as in most countries NEBs do not have the power to issue a binding decision in the event of a breach of the Regulation. When NEBs’ decisions are not binding on operators, passengers must seek another instrument to obtain redress, resulting in passenger rights not being effectively enforced. It is difficult to determine whether the low level of complaints to NEBs, as mentioned above, represents ‘the tip of the iceberg’ or the actual level of concern among passengers about the service they receive. Although there is in general a low number of complaints, there has been an increasing trend in the amount of complaints to the NEBs in recent years from under 100 complaints before 2015 to more than 500 complaints in 2018 and 2019. It remains that the number is still very low taking the number of passengers carried into consideration (one complaint per million passengers). Monitoring activities of carriers, terminals and other parts of the industry’s supply chain carried out by the NEBs contribute to ensure the enforcement of the Regulation. This may help improve the effectiveness in the implementation of the Regulation. Although the Regulation obliges NEBs to take all the measures necessary to ensure compliance, there is no uniform approach to monitoring activities. Where most NEBs have informed that they “monitor and oversee compliance with the Regulation” other NEBs have added more proactive monitoring such as anonymous purchase tests, they inspect the safety and accessibility of passenger ships, audit terminals and ticket vendors and others again check carrier websites. Where such monitoring activities are undertaken, they consist of periodic assessments of carriers’ and terminal operators’ websites to ascertain whether information on passenger rights is available and the carriers’ general conditions of carriage are compliant with the Regulation. In other Member States, no such proactive monitoring was reported during the consultation. Moreover, some Member States use PSO contracts, which gives the contracting authority a greater ability to oversee the performance and behaviors of carriers (including aspects related to passenger/consumer) than if they were operating on a purely commercial and competitive basis. It is to be noted that some Member States have also worked on supporting the enforcement through other means, e.g. through information campaigns and runs information services. Whether the approaches taken by Member States, especially the approach based mainly or exclusively on responding to complaints, have been efficient and effective to ensure compliance and consistency in enforcement across Member States, carriers, routes and PSO and non-PSO services, cannot be assessed firmly, given the scarcity of data on this question as explained above when analysing the number of complaints. A common approach among Member States with respect to imposing sanctions is also missing. As mentioned in Chapter 3, only four NEBs (Croatia, Greece, Italy and Spain) have imposed penalties, which means that the sanction procedures remain untested in most Member States. The total number of sanctions were very low (only 127 penalties imposed by all NEBs in the period between 2013 and 2019) and often the sum of the penalties is low (e.g. most of the 25 penalties imposed by the Greek NEB are of a sum of EUR 150 or less). Only a limited number of NEBs provided information on the maximum values of the penalties they can impose. Where such data is available, it can be noted that there are significant differences in the minimum and maximum amount of the penalties that can be issued. The relatively low amounts of penalties could raise doubts whether the penalties are proportionate and more importantly dissuasive, while providing a strong incentive to comply with the Regulation, especially when combined with no pro-active monitoring and a low level of awareness of passengers about their rights. Given the data available, no firm conclusion on effectiveness, proportionality and dissuasiveness of the sanctions can be drawn.

In addition, the NEBs are obliged to publish bi-annual reports on their activities as of 1 June 2015. These reports are a valuable source of data. If not foreseen under national law or by Article 13 of the Regulation, the NEBs cannot rely on reports of carriers, because these are not in general obliged to report on certain service quality standards as it is the case for rail passenger rights. The reports of the NEBs have to contain in particular a description of actions taken in order to implement the Regulation and statistics on complaints and sanctions applied (Article 26). When coming to the establishment of some NEBs and their enforcement, some weaknesses have been identified: The Italian and the United Kingdom NEBs are for instance not empowered to impose sanctions if certain provisions of the Regulation are not respected. In addition, although most NEBs can impose sanctions directly as an administrative procedure, the Irish and the United Kingdom NEBs must refer the matter to a court, whilst the Danish and Portuguese NEBs must report the infringement to another body which decides whether to impose sanctions or not. Without sufficient monitoring activities and enforcement measures backed up by effective sanctions, the effectiveness of NEBs’ powers is and will remain limited. This leads to the conclusion that in practice, differences do occur with respect to the effective level of protection provided to passengers in different Member States, which is especially an issue for passengers travelling across borders. It also leads to differences in an otherwise level-playing field across the European Union because operators do not compete on a similar basis. Furthermore, EU carriers competing on specific routes with carriers established outside the EU, such as routes to or from North Africa, might have disadvantages compared to their non-EU competitors. Whilst the Regulation applies to carriers established outside the EU and operating to and from Member States, non-EU countries do not necessarily have regulatory bodies with responsibilities comparable to those of NEBs. The fact that these carriers are established outside the EU might lead to difficulties to ensure the payment of penalties (this particular observation by is based on anecdotal evidence by EU carriers and no other supporting evidence was identified to confirm these difficulties). In order to assess the effectiveness of the enforcement of passenger rights by NEBs in the context of the COVID-19 pandemic, recent information has been analysed, focusing on the reimbursement of tickets to passengers in the event of cancellation of travels. Only in about half of the Member States where passengers were affected by a service cancellation were they refunded or at least granted the choice between reimbursement and vouchers, in the event of journeys cancelled by carriers. Specifically, based on the data received, the solutions found on the issue of reimbursement in the form of vouchers include refunds granted on demand, refunds upon NEB request and resolution of complaints in an amicable way. Nevertheless the data available so far of complaints to NEBs do not show a significant rise in the number of complaints in 2020. As mentioned above, the Commission started in August 2020 informal dialogues with all Member States regarding the application of passenger rights in all modes of transport including waterborne in the context of COVID-19 and the obligations of NEBs to report on their activities. These procedures are still ongoing. The protection of the waterborne passenger rights can be complemented by wider public enforcement mechanisms established under the Consumer Protection Cooperation Regulation as underlined by Recital 28 of the Regulation. So far, this Regulation has not been used for waterborne passenger rights. Passengers may also seek individual redress by turning to Alternative Dispute Resolution (ADR) bodies or national courts. Turning to ADR bodies can be a comparatively efficient and effective way to seek redress for waterborne passenger rights complaints. However, based on information provided by NEBs and ADR bodies themselves, not all Member States are equally equipped in that respect: a number of them do not have specific ADR bodies for the sector and direct the disputes to a generic ADR body. In addition, in some Member States where NEBs are entitled to adjudicate on passenger rights claims the participation of carriers in the procedure is voluntary. The Commission has supported the launch of Travel-Net, an association of Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) bodies for transport and travel disputes, to facilitate networking and exchange between them. In any case, the interaction between the specific system of redress dedicated to passenger rights (carriers and NEBs) by the Regulation and the other enforcement tools available more widely (ADR, courts), also adds to the complexity of the system. 5.1.3. Which factors have contributed to/hindered the achievement of objectives? Several factors have contributed to the achievement of the objectives of the Regulation: -the Regulation entrusted NEBs with monitoring compliance and with enforcement, following a similar approach to that followed in other European passenger rights legislation; -the Regulation built on a pre-existing requirement to ensure the accessibility of vessels providing passenger services within the European Union imposed by Directive 2009/45/EC; -the expansion of digital technology and the availability of services and information via smart devices have complemented the Regulation by improving accessibility of information and broader aspects of customer service. Other factors have prevented the potential benefits of the Regulation from being realised: -some NEBs have been less proactive than others in enforcing the requirements of the Regulation. The lack of consistent enforcement activities and the limited level of interaction suggests that potential for common approaches to the same issues remains unused;

-the availability and quality of services and facilities (such as waiting rooms, toilets and facilities offering refreshments) vary considerably across ports across the European Union. This can be explained by the fact that most ports are heavily geared towards freight traffic and less focussed on passengers or are only equipped for passengers arriving and leaving the terminal by vehicle. Limited terminal facilities can constrain carriers seeking to meet their obligations under the Regulation. Also, a lack of PRM assistance points in ports was identified; -the availability or opening times of catering facilities can hinder the realisation of the obligation to provide free of charge snacks, meals or refreshments in reasonable relation to the waiting time which is an obligation for carriers in case of delayed or cancelled services; -it is unclear whether channels of communication between carriers, ports, travel agents and passengers are adequate as in instances where tickets are purchased other than from the carrier, such information of contact details must be passed to the carrier or port; -The general lack of sanctions could also suggest that incentives to comply with the legislation can be weak. 5.1.4. What have been the effects (positive or negative impacts) of the Regulation? Were there any unintended or unexpected effects? Could all the changes observed since the entry into force of the Regulation be credited to the Regulation? Some evidence can be found that the Regulation has led to improvements for passengers, including PRM, across the European Union. In particular, the following improvements can be named: -greater awareness of the needs of passengers during disruption in terms of information provision as well as broader care and assistance; -greater awareness of the needs of PRMs, even if the situation remains varied across Member States; -greater consistency of treatment across operators, ports and Member States; and -a system for addressing complaints. As indicated in the baseline analysis, in 2013, 50 million passengers benefitted from an improvement in the quality of rights, and the Regulation benefitted passengers by providing access to assistance in the event of a cancellation to 1 million passengers, and improving the quality of rights available to further 1.4 million passengers. However, it must be taken into account that few NEBs commented on the impact of the Regulation in the course of the consultation exercise. Also, one NEB stated that no specific studies on the effect of the Regulation have been undertaken, suggesting that no firm conclusion can be drawn. The scarce evidence provided indicates that, in practice, the effects have varied between Member States, partly as a result of variations in the extent to which NEBs have been empowered to enforce the requirements of the legislation: -two NEBs reported that the Regulation has influenced the behaviour of many carriers, while one noted it reflected in the improved information on passenger rights and on complaints procedures; -one NEB explained that operators are aware of costs, so they ensure to have replacement vessels at their disposal, although another NEB stated that carriers have not increased their operational times to reduce the risk of delays. It must also be noted, that some elements of the Regulation have not been fully implemented. This must be said with respect to the information on passenger rights on ports’ websites that often have no such mention but in a few instances with the indication of passenger facilities or contact details. A further concern, which cannot be directly attributed to the Regulation, relates to the transport industry’s increasing reliance on information technology. Foremost, it can be considered positive that the use of such technology allows carriers to forward information to passengers in real time, and can be particularly helpful in managing cancellations, delays, re-routing, complaint-handling and reimbursement. Whilst this is helpful to the majority of passengers, a substantial proportion of whom have access to a smart device, it can result in some passengers being ‘left behind’, particularly where it leads to a decline in the use of other methods of communication, including the provision of ticket offices and information desks. Whilst it is not clear which changes can be linked to the Regulation and which changes would have occurred also as a result of competition, technology and broader changes in social awareness, most stakeholders have indicated that carriers did not change their operational practices such as service schedule and fleet allocation to routes as a result of the Regulation. A number of carriers also emphasised that customer satisfaction is an important business objective by itself. Thus, the management of customer relations would be undertaken regardless of the requirements of the Regulation. No unexpected effects, neither positive nor negative, related to the Regulation were identified. Especially, no evidence could be found that fares have been affected by the Regulation. These depend mainly on demand, price elasticity, competition scenarios, and target return on investment. 5.1.5. Did the Regulation lead to legal clarity? Does the Regulation leave gaps that might hamper its effectiveness?

The effectiveness of the Regulation has been limited due to the fact that several of its provisions have been difficult to interpret, particularly because there has been an absence of case law of the CJEU until recently. NEBs and carriers indicated that they had difficulties in particular in interpreting the following notions: “re-routing under comparable transport conditions” and “at the earliest opportunity”, the scope of extraordinary circumstances, or what is comprised in the ticket price which serves as the basis to compensate for delays and cancellation. In its recent preliminary ruling (C-570/19), delivered in September 2021 (i.e. after the evaluation period), the CJEU interpreted some of these notions. Among others, the CJEU ruled that: -passengers are entitled to receive compensation in case they request rerouting and their service arrives later than the initial booking at the final destination even if the carrier informed passengers well in advance about the cancellation of the original service or change in the schedule; -the concept of ‘ticket price’ includes costs related to the additional optional services chosen by the passenger, such as the booking of a cabin or a kennel, or access to premium lounges; -in case there is no alternative ferry service on the same route, the carrier is required to offer the passenger, by virtue of the passengers right to re-routing under comparable conditions and at the earliest opportunity to the final destination provided for in that provision, an alternative service that follows a different itinerary from that of the cancelled service or a maritime service coupled with other modes of transport, such as rail or road transport, and is required to bear any additional costs incurred by the passenger in re-routing to the final destination; -the right of passengers to be re-routed at “no additional costs” means that the carrier must bear any additional costs incurred by the passenger in re-routing to the final destination, “such as fuel or road tolls which the passenger incurred in order to travel to the alternative port of embarkation, or to leave the alternative port of disembarkation and travel to the port of disembarkation originally scheduled, or costs incurred by the passenger when travelling by road or rail in connection with a landbridge“; -the term of “extraordinary circumstances” must be interpreted strictly, by taking into account recitals 17 and 19 of the preamble as well as the CJEU case-law relating to that concept, developed in the context of Regulation (EC) No 261/2004 on air passenger rights. In the Case Irish Ferries, the Court specifically stated that “Article 20(4) of Regulation (EU) No 1177/2010 must be interpreted as meaning that the late delivery of a passenger transport vessel which led to the cancellation of all sailings to be operated by that vessel in the context of a new maritime route does not fall within the concept of ‘extraordinary circumstances’ within the meaning of that provision”. The CJEU’s preliminary ruling is a significant step towards improving the legal clarity of certain provisions although it does not solve all the legal questions related to these provisions. Lack of clarity and gaps Compensation of the ticket price in the event of delay at departure The right to compensation in the event of delay at departure needs clarification, as the Regulation does not specify whether a “delay” should be calculated at the time the ship berths or the time the doors are opened. The Regulation requires carriers to pay compensation for delays even though these delays may depend on the efficiency of towage operations or port berthing activities. Whilst in other Regulations such as Regulation (EC) No 261/2004 on air passenger rights (Article 13) it is clarified that the rights of carriers regarding redress against any third party responsible for the disruption are not to be interpreted in such a way as restricting this right of redress, no such clarification is made in the Regulation on waterborne transport. Information in the event of cancelled or delayed departures The provision of information about delays and cancellations is a dynamic process including regular updates on the status of the service. The Regulation mandates carriers, or where appropriate the terminal operator, to inform passengers about delays and cancellations. Communication via contact details provided by passengers can be essential in this context. The recollection of such information may however be difficult. The Regulation neither requires passengers to provide contact details, nor does it set out obligations on carriers or terminals to exchange such contact details with the aim of informing the passengers about cancellations and delays. When contact details have not been passed on in the case of a booking with a travel agent or tour operator, no such information can be given. Particularly, sharing this type of personal data is governed by the General Data Protection Regulation (GDPR). Travel agents or tour operators also regard such contact details as commercially sensitive, since these passengers form their customer base. Another key issue is the actual capacity to provide passengers with real time information on the status of the service, regardless of where the passenger is at a given time and which technologies the passengers are in possession of. Contact details would need to be in a format such as an e-mail or a mobile device number that allows carriers to provide information both regularly, with updates on the status of the transport service, and independently of the location of the passenger. Information should furthermore be provided in several different accessible formats, rather than only through voice message or only through display screens. Lack of differentiation with respect to passengers travelling with their car Whilst data on the number of passengers travelling by ferry with a car are not generally reported, there is consensus across the industry that such passengers represent a very high proportion of total ferry traffic. The Regulation however is silent on the special issues that passengers travelling with their cars might face. If a passenger is entitled to compensation as a result of a delay or cancellation, does the “ticket price” of the “passenger service” which serves as the basis to calculate compensation include the costs of transporting the car? When passengers are informed of delays only after they have boarded with their vehicle it is impractical to disembark them (which would cause even more delays) are they then still allowed to renounce travelling and disembark? Extraordinary circumstances The notion of “extraordinary circumstances” is an area where there is a lack of clarity. The passenger is entitled to compensation of the ticket price in the event of a delay in arrival in accordance with Article 19 of the Regulation. However, Article 19 does not apply if the cancellation or delay is caused by weather conditions or by extraordinary circumstances. A further explanation of extraordinary circumstances is provided by Recital 17, however this definition is not exhaustive, which can lead to differences in interpretation between NEBs and can make it difficult for passengers to be sure of their rights. The recent CJEU case defines that the term of “extraordinary circumstances” should be interpreted strictly and has given a ruling on the specific case. Nevertheless, there are still many other circumstances, not in the scope of the individual case, which might be of relevance in this respect, depending on the case at hand, on which the CJEU did not yet have to decide. It is also noted that “extraordinary circumstances” also is an issue concerning air passenger rights resulting in many court cases. During spring 2020, the Commission advised NEBs and carriers on the assessment of the pandemic as an extraordinary circumstance in order to ensure an EU-wide approach.

5.1.6. Are passengers easily granted the rights to which they are entitled? First and foremost, passengers must be aware of their rights in order to claim them. As noted in Chapter 3 a lack of awareness among waterborne passengers is still prevalent. The analysis of carriers’ websites demonstrates that most of the main ferry and cruise operators provide information on the Regulation to passengers. This is confirmed by the consultation where carriers noted that the Regulation has affected their approach to providing information (in contrary to the ports, where such passenger oriented information rarely can be found as explained above). However, a lack of information provided to PRMs can be identified. In several instances, no clear explanation on how PRMs can request assistance from ports can be found, and in other instances, the focus is on certain types of disability. This is confirmed by statements of organisations representing PRMs noting that complaint procedures are difficult to access or to understand. Most NEBs have indeed not sought to introduce harmonised complaint forms that can easily be used by all passengers. 5.2. Efficiency Evaluation questions 5.2.1. What are the costs and administrative burdens associated with the Regulation? How significant are they and what are they influenced by? How are they distributed among the stakeholders? The specific regulatory costs associated with the Regulation are mainly monitoring and enforcement costs and are as such not extensive. Stakeholders’ views on specific regulatory costs, including in relation to monitoring and enforcement, are analysed in detail in the cost-benefit analysis part of the support study, which provides rough estimates and can be found in Annex 5. While stakeholders highlighted a range of costs as a result of the Regulation, the majority of the costs can be considered transfers from carriers and terminal operators to passengers, the costs of which are subsequently recovered through higher fares and absorbed through lower profit margins. Monitoring and enforcement costs are expected to be incurred mostly by NEBs and carriers, although neither stakeholder group provided estimates of these costs. Different stakeholder groups incur different costs: -Passengers bear enforcement costs with respect to time required to research rights, collect evidence and correspond with the carrier/port operator or NEB when he or she submits a complaint, with respect to inconvenience and risk and with respect to legal fees where advice is procured and especially where NEBs’ decisions are non-binding and they have to sue the carrier or port operator at national courts; -NEBs bear enforcement costs with respect to monitoring (communication with stakeholders, collection and verification of evidence, assessing compliance of carriers’ and terminal operators’ procedures, general conditions of carriage and websites, and inspections and audits) and to enforcement; -Both carriers and terminal operators bear implementation costs with respect to monitoring (collection and submission of evidence of compliance to NEBs and internal quality audits) and to enforcement (additional staff training, updating company policies, operating procedures, general conditions of carriage and websites, and the if sanction by a NEB, payment of penalties. The cost-benefit analysis estimates that in the period between 2013 and 2018 NEB costs amounted to EUR 20.3 million (in 2018 prices). This suggests that the bulk of compliance costs are likely to be incurred by carriers responding to passenger complaints as very few cases are escalated before NEBs as well as ADRs. The analysis further delivers the estimate that costs of processing complaints for carriers amounted to EUR 57 million in the same period (also in 2018 prices). For passengers, the cost-benefit analysis estimates that their costs amounted to EUR 6.5 million in 2018 prices, however their benefits were EUR 26.3, which gives an added value of EUR 19.8 million for the passengers. In addition, the cost-benefit analysis estimates that the extra cost for carriers per passenger associated with the Regulation (i.e. the costs incurred from providing assistance, re-routing, reimbursement and compensation) amounted to approximately EUR 0.05 per passenger. The majority of these costs would not be incurred in the absence of the Regulation, as for example carriers and terminal operators would probably not have addressed complaints as thoroughly in the absence of the Regulation. However, for passengers pursuing legal action, the Regulation may not have reduced the associated costs materially although a more consistent legal framework was established, and for NEBs, the costs cannot always be attributed to the Regulation, notably where Member States had implemented similar national legislation prior to the Regulation’s entry into force. 5.2.2. What types of benefits have been achieved for different stakeholder groups? Different benefits of the Regulation can potentially accrue to different stakeholder groups: -passengers receive direct benefits from the establishment of rights across Europe and a framework through which they can exercise their rights. This can lead to increased passenger confidence and improved accessibility to services for PRM. -NEBs receive no direct benefits, although they develop a better understanding of operators’ processes. -carriers may receive indirect benefits from better operational processes, reputational benefits and possible increased passenger demand; however few carriers indicated having direct benefits from the Regulation;.

-terminal operators may benefit from harmonised operational processes and increased legal certainty. -travel agents and tour operators receive no direct benefits, although service is better delivered for their customers, including PRM. For passengers, the overall impact of the Regulation has been positive, in that the Regulation increased their rights, although in some cases the enforcement of those rights is rather complex or not efficient. In particular, the stakeholder consultation named several benefits for passengers: -increased travel confidence and, as a result, increased demand for waterborne services; -time saving based on a single set of enhanced rights for passengers, including PRM; -compensation in the case of disruption to be claimed from carriers with clear time limits with a further means of mechanism to seek redress before NEBs; -PRM assistance services are free of charge for PRM (generally recovered through general ticket prices as an economic transfer from other passengers to PRM, although data to precisely allocate costs is lacking); -assistance services in the case of transport disruption for passengers, offering the choice of continuation, re-routing or reimbursement (although in practice, constraints can be noted); -formal complaint procedure for passengers, before NEBs (although not all NEBs processes are set up for individual passenger redress as some are unable to investigate complaints on behalf of passengers, the non-binding nature of some NEB decisions tends to dilute the benefit as passengers need to turn to courts, and the ability of some NEBs to thoroughly investigate a complaint can be questioned due to a lack of investigative resources and enforcement powers). 5.2.3. Can the costs and administrative burden incurred by stakeholders be considered proportionate to the benefits established? The Regulation primarily places the economic burden onto carriers and terminal operators, who in turn pass it on to passengers, through waterborne fares, although theoretically it could be absorbed through reduced margins. In addition, the legislation creates additional regulatory costs (in the form of compliance and enforcement costs) for some groups of stakeholders. The evidence provided by stakeholders offered various views on the distribution of costs and benefits. Passenger representatives of PRM and non-PRM passengers mostly confirmed that the passenger benefits attributable to the Regulation exceeded any costs incurred by them. Thus, most stakeholders named several benefits for passengers and named the proportionality of costs “positive” or “somewhat positive”. The only costs to passengers identified by these stakeholders are those represented by the time commitment and inconvenience to pursue complaints. The vast majority of the NEBs considered the costs associated with the Regulation to be proportionate to the benefits brought by the Regulation. They highlighted the realisation of significant indirect benefits, primarily relating to greater passenger welfare. Such indirect benefits identified were mainly: -service quality improvements; -an established process for complaint-handling; -timely access to information regarding delays; -greater transparency and accoun