COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the documents Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, (EC) No 1107/2006, (EU) No 1177/2010, (EU) No 181/2011 and (EU) 2021/782 as regards the better application and enforcement of Union rules on passenger rights Proposal for a Regulation of the European Parliament and of the Council on passenger rights in a multimodal context
Date: 2023-11-29
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: air transport, bus, carriage of passengers, combined transport, consumer information, disabled person, indemnification, inland waterway transport, maritime transport, passenger rights, rail transport

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  EN 

   EUROPEAN COMMISSION  Brussels, 29.11.2023  SWD(2023) 389 final  COMMISSION STAFF WORKING DOCUMENT Subsidiarity Grid Accompanying the documents Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004, (EC) No 1107/2006, (EU) No 1177/2010, (EU) No 181/2011 and (EU) 2021/782 as regards the better application and enforcement of Union rules on passenger rights Proposal for a Regulation of the European Parliament and of the Council on passenger rights in a multimodal context {COM(2023) 752 final} - {SEC(2023) 392 final} - {SWD(2023) 386 final} - {SWD(2023) 387 final}  
 
 
Subsidiarity Grid 

-  As proposed by the Committee of the Regions with guidance in blue  

-  Obviously, the answers to the questions below, the explanatory memorandum and – if 

applicable – the impact assessment should be consistent. This may require some iterations.  

-  Please try to stay under 10 pages.  

1.  Can the Union act? What is the legal basis and competence of the Unions’ intended action? 

1.1 Which article(s) of the Treaty are used to support the legislative proposal or policy initiative? 

Article 91(1) of the Treaty on the Functioning of the European Union (TFEU) serves as the legal basis 
for the adoption of EU legislation related to a common transport policy. This provision is the legal 
basis for the passenger rights Regulations currently in force. Furthermore, pursuant to Article 100(2) 
TFEU the Union legislator may lay down appropriate provisions for sea transport.  

1.2 Is the Union competence represented by this Treaty article exclusive, shared or supporting in 
nature? 

In the case of transport, the Union’s competence is shared (Article 4(2)(g) TFEU).  

Subsidiarity does not apply for policy areas where the Union has exclusive competence as defined in 
Article 3 TFEU1. It is the specific legal basis which determines whether the proposal falls under the 
subsidiarity control mechanism. Article 4 TFEU2 sets out the areas where competence is shared 
between the Union and the Member States. Article 6 TFEU3 sets out the areas for which the Unions 
has competence only to support the actions of the Member States. 

2.  Subsidiarity Principle: Why should the EU act? 

2.1 Does the proposal fulfil the procedural requirements of Protocol No. 24: 

-  Has there been a wide consultation before proposing the act? 
- 

Is there a detailed statement with qualitative and, where possible, quantitative indicators 
allowing an appraisal of whether the action can best be achieved at Union level? 

The  Commission  actively  engaged  with  stakeholders  and  conducted  comprehensive  consultations 
throughout the impact assessment process. Stakeholders’ views started to be collected in response 
to  the  publication  of  the  Call  for  Evidence  (20/12/2021  to  17/01/2022).  A  total  of  58  replies  were 
received. This was followed by an open public consultation (OPC), organised by the Commission and 
running from 14/09/2022 to 07/12/2022. A total of 185 responses were received, covering a variety 
of  stakeholder  groups.  A  targeted  stakeholders’  consultation  was  organised  by  the  consultant 
responsible for the impact assessment support study, including a survey, a series of interviews and 
stakeholder  workshops.  Ten  categories  of  stakeholders’  groups  were  targeted  through  these 
activities, ensuring a representation of various interests: passengers and consumer organisations and 

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E003&from=EN  
2 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12008E004&from=EN  
3 https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E006:EN:HTML  
4 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016E/PRO/02&from=EN  

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representative organisations of passengers with disabilities (PRM); carriers for air and their umbrella 
organisations;  carriers  for  waterborne,  bus  and  coach,  and  rail  and  their  representative 
organisations;  intermediary  ticket  vendors,  online  travel  agencies  and  package  travel  organisers; 
stations,  terminal  or  (air)port  infrastructure  and  terminal  managers;  National  Enforcement  Bodies 
and  other  public  authorities  at  national  and  local  level;  Alternative  Dispute  Resolution  bodies; 
insurance companies and insolvency protection funds; credit card companies; claim agencies. (All of 
these  stakeholder  groups  also  took  part  in  the  OPC.)  The  survey  ran  from  18/10/2022  until 
09/12/2022, and the targeted interviews from 14/11/2022 until 10/01/2023.  

The consultant also organised three online stakeholder workshops in the period of 13/12/2022 until 
26/01/2023. 

Four  modal  NEB  meetings  were  held  between  13/10/2022  and  12/12/2022  to  gather  specialised 
input in relation to the issue of enforcement. 

The Explanatory Memorandum and the Impact Assessment contain a section on subsidiarity (please 
see the answer to question 2.2.).  

2.2 Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the conformity with the 
principle of subsidiarity? 

The  two  explanatory  memoranda  accompanying  the  Commission  proposals  do  contain  adequate 
justifications regarding the conformity with the principle of subsidiarity. 

Proposal for a Regulation of the European Parliament and of the Council amending  Regulation (EC) 
No  261/2004,  (EC)  No  1107/2006,  (EU)  No  1177/2010,  (EU)  No  181/2011  and  (EU)  2021/782  as 
regards the better application and enforcement of Union rules on passenger rights: 

The  level  of  protection  of  passengers  was  rather  limited  before  the  passenger  rights  Regulations 
were  adopted.  Within  the  Single  Market,  many  carriers  (not  only  airlines  but  also  railway 
undertakings  and  shipping  companies,  and  increasingly  bus  companies)  provide  their  services  in 
different Member States and even beyond. Harmonisation of passenger rights at EU level is therefore 
necessary to ensure a level playing field for all actors involved in the provision of transport services 
(e.g., carriers, infrastructure managers (especially relevant for PRM), intermediaries etc.)  which are 
often cross-border. It remains that effective enforcement rests on the cooperation between Member 
States  and that monitoring  activities  are  performed at  national  level.  Regarding  reimbursement  by 
intermediaries, the  air travel market in the EU is essentially  cross-border, with some of the largest 
intermediaries being international market players. Action at national level may lead to distortions of 
the internal market while passengers must be able to assert their rights in the same manner and to 
benefit from the same protection regardless of the Member State where they travel.  

The  new  measures  related  to  enforcement  would  allow  making  existing  rights  more  effective  by 
ensuring  that  NEBs’  enforcement  practices  would  incentivise  carriers,  terminal  operators  and 
intermediaries (especially those who do not always apply the existing rules on passenger rights rules 
in a fully compliant way) to deliver the best protection to passengers and by removing obstacles that 
prevent  citizens  from  effectively  exercising  their  rights  under  EU 
law.  A  more  effective 
implementation of passenger rights will contribute to the new approach promoted by the common 
transport  policy  and  the  Green  Deal  to  incentive  the  use  of  more  sustainable  transport  modes. 
Finally, the new measures will contribute to enhance the protection for air passengers across the EU, 
ensuring that they will be reimbursed also if they booked via an intermediary. For these reasons, the 
problems identified above require action at EU level. 

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Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  passenger  rights  in  a 
multimodal context: 

Passenger  rights  for  travel  by  air,  rail,  bus  and  coach  (for  long  distance  journeys),  sea  and  inland 
waterways are already enshrined in EU law, and it is only urban/short-distance passenger transport 
that has been mostly left within the  jurisdictions of Member States. The current  proposal seeks  to 
address  the  lack  of  rights  for  passengers who  travel using  a  combination of  these modes. Without 
harmonisation of the rules protecting passengers during such journeys, carriers, intermediaries and 
multimodal hub managers would have to work under different regimes. Passengers would be subject 
to  multiple  rules  and  find  it  difficult  to  know  and  insist  on  their  rights.  Moreover,  several  regimes 
might  apply  to  transport  contracts  for  multimodal  journeys  between  Member  States.  For  these 
reasons, national rules, even assuming that  they gave  passengers a high level of protection, would 
not  achieve  essential  Union  objectives  and  would  even  frustrate  their  achievement.  In  sum,  this 
initiative seeks to address a gap in EU legislation which, if left at national level, would create the risk 
of distortions or potential negative spill-over effects.  

2.3 Based on the answers to the questions below, can the objectives of the proposed action be 

achieved sufficiently by the Member States acting alone (necessity for EU action)? 

The objectives of the proposed initiative cannot be effectively achieved by actions of individual 
Member States. The positive impact of the initiative highly depends on the availability of   
harmonised passenger rights that create a level playing field on the Single Market. 

(a)  Are there significant/appreciable transnational/cross-border aspects to the problems being 

tackled? Have these been quantified? 

A large number of carriers (not only airlines but also railway undertakings and shipping companies, 
and increasingly bus and coach companies) provide their services in different Member States and 
even beyond. Harmonisation of passenger rights at EU level is therefore necessary to ensure a level 
playing field for all stakeholders involved in the provision of transport services (e.g. carriers, 
infrastructure managers (especially relevant for PRM), intermediaries etc.). Passengers must be able 
to assert their rights in the same manner and to benefit from the same protection regardless of the 
Member State where they travel. This also concerns the enforcement of the legal framework in order 
to ensure the level playing field between the Member States in regard to protection of passengers 
and the claims the passengers may file if their rights were not respected. The problems are 
widespread across the EU given the cross-border nature of transport. 

(b)  Would national action or the absence of the EU level action conflict with core objectives of 

the Treaty5 or significantly damage the interests of other Member States? 

No. 

(c)  To what extent do Member States have the ability or possibility to enact appropriate 

measures? 

Member States are not prevented from taking appropriate measures in this policy area. Rules on 
complaint handling procedures, legal redress, availability of specialised alternative dispute 
resolution, system of sanctions, which bodies are dealing with the monitoring and enforcement of 
the Regulations will remain for member States to design. 

5 https://europa.eu/european-union/about-eu/eu-in-brief_en  

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(d)  How does the problem and its causes (e.g. negative externalities, spill-over effects) vary 

across the national, regional and local levels of the EU? 

The problem of inefficient enforcement of passenger rights exists in all Member States: National 
Enforcement Bodies cannot monitor the application of passenger rights efficiently because they do 
not have enough information about carriers’ compliance with the respective regulations and they do 
not enforce passenger rights in a coherent manner because there is no EU level common approach 
related to monitoring and enforcement. This means that in practice passengers cannot enjoy the 
same rights throughout the EU.  
The problem of unclear rules for the reimbursement of air tickets booked via intermediaries exists at 
the national level, because National Enforcement Bodies are not yet competent to enforce rules on 
intermediaries. Otherwise, in terms of unclear rules that affect passengers, air carriers and 
intermediaries, there is no difference between the regional and the local level.  
With regard to passenger rights in a multimodal context, there are no rules currently in place at the 
national level, implying that the actual protection of passengers depends on the concrete terms and 
conditions under the contract of carriage (supposing that it covers a multimodal journey) and the 
actual protection offered to PRM when switching modes at multimodal passenger hubs. This means 
that by definition, the level of protection differs from the national, regional or local perspective. 

(e)  Is the problem widespread across the EU or limited to a few Member States? 

The problems are widespread across the EU given the cross-border nature of transport. At the same 
time, no national approach would be able to result in a harmonised framework for the protection of 
passengers for carriers operating internationally. 

(f)  Are Member States overstretched in achieving the objectives of the planned measure? 

No. The measures proposed will on the contrary also help national enforcement bodies to fulfil their 
tasks more easily. For example, they can request documents they need, they have reports which 
enable them to focus their work. 

(g)  How do the views/preferred courses of action of national, regional and local authorities 

differ across the EU? 

In the stakeholder consultation, the participating authorities broadly confirmed the objective of an 
increased level of protection for passengers at the EU level. Inputs from public authorities, including 
Member States, regional and public infrastructure authorities were also collected through the 
general consultation tools. 

2.4 Based on the answer to the questions below, can the objectives of the proposed action be 

better achieved at Union level by reason of scale or effects of that action (EU added value)? 

[Summarise in a brief paragraph the gist of questions 2.4 a-e below.] 

Due to the strong cross-border dimension of passenger transport, the objectives of the proposed 
action can be better achieved at Union level by reason of scale and effects of that action. 

(a)  Are there clear benefits from EU level action?  

The EU transport sector has a strong cross-border dimension, playing an important role for the free 
flow of passengers on the EU internal market. By removing unnecessary barriers for passengers and 
for actors in the passenger transport market, a level playing field will be ensured for all stakeholders. 
This can best be achieved through action at Union levelThe new measures related to enforcement 
would allow making existing rights more effective by making sure that NEBs’ enforcement practices 

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would incentivise carriers, terminal operators/managing bodies and intermediaries to deliver the 
best protection to passengers and by removing obstacles that prevent citizens from effectively 
exercising their rights under EU law. The added value of passenger rights for multimodal journeys lies 
in the continuity of the passenger protection across the journey; protecting passengers travelling 
multimodal would be an additional contribution to the new approach promoted by the common 
transport policy and the European Green Deal to incentivise the use of more sustainable transport 
modes. Finally, the new measures will also contribute to enhance the protection for air passengers 
across the EU, ensuring that clear rules will be in place for air tickets booked via an intermediary.  

(b)  Are there economies of scale? Can the objectives be met more efficiently at EU level (larger 

benefits per unit cost)? Will the functioning of the internal market be improved? 

The EU transport sector and the travel sector more generally has a strong cross-border dimension, 
playing an important role for the free flow of people on the EU internal market. Transport services of 
a high quality are key to meet the demand of transport users, support the growth of the EU economy 
and preserve the lifestyle of citizens. A more harmonised enforcement will also contribute to a better 
level playing field for companies. The initiative is therefore expected to have a positive impact on the 
functioning of the internal market.  

(c)  What are the benefits in replacing different national policies and rules with a more 

homogenous policy approach? 

In general, the proposed Regulations do not replace any national policy, but rather provides 
complementary and harmonised rules for an improved protection of passengers throughout the EU. 
In addition, for passengers who need to switch the transport mode for a multimodal journey, there 
are no statutory rules yet on national level. 

(d)  Do the benefits of EU-level action outweigh the loss of competence of the Member States 
and the local and regional authorities (beyond the costs and benefits of acting at national, 
regional and local levels)? 

There will be no loss of competence of the Member States. 

(e)  Will there be improved legal clarity for those having to implement the legislation? 

Yes. One of the main overarching objectives of the initiative is to provide more legal clarity on a 
number of aspects. As regards enforcement, national enforcement bodies will have to provide 
information to the Commission about the way  they interpret and apply passenger rights and this 
information will be shared with other national enforcement bodies. If the Commission sees that 
differences in the application and enforcement of any of the provisions arise, it may clarify those 
provisions, with a view to promoting a common approach. To this end, the Commission may adopt a 
recommendation after consultation of a comitology committee. This will increase legal quality and 
ensure a more coherent application of passenger rights. With regard to air travel in particular, the 
missing legal clarity is the problem which the proposed new rules on reimbursements when air 
tickets were booked via intermediaries tackle. As regards multimodal journeys, the proposed rules 
ensure that there is a harmonised framework is in place for multimodal journey offers, where there 
is currently none. 

3.  Proportionality: How the EU should act 

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3.1  Does the explanatory memorandum (and any impact assessment) accompanying the 

Commission’s proposal contain an adequate justification regarding the proportionality of the 
proposal and a statement allowing appraisal of the compliance of the proposal with the 
principle of proportionality? 

Yes. None of the two options dealing with enforcement go beyond what is necessary to reach the 
overall policy objectives. Policy options addressing the lack of clarity of reimbursement rules when a 
flight is booked via an intermediary also contribute to achieving the general objectives and the 
measures proposed are proportionate in view of the specific objectives.  
As regards passenger rights in a multimodal context, none of the policy options goes beyond what is 
necessary to reach the overall policy objectives.  

3.2 Based on the answers to the questions below and information available from any impact 
assessment, the explanatory memorandum or other sources, is the proposed action an 
appropriate way to achieve the intended objectives? 

Choices concerning the relevant policy measures and policy option forming the structure of this 
initiative were made in due consideration of the proportionality principle, thus resulting in the most 
balanced approach possible. A regulation was considered to be the most appropriate instrument to 
ensure common implementation of the measures envisaged, while reducing the risk of distortion 
within the single market. 

(a)  Is the initiative limited to those aspects that Member States cannot achieve satisfactorily on 

their own, and where the Union can do better? 

Yes. A large number of carriers provide their services in different Member States and even beyond. 
This requires the same legal provisions in all Member States to ensure a level playing field for all 
stakeholders and the same level of protection for passengers. The main objective is to enhance the 
effectiveness of the existing passenger rights framework through targeted amendments, and the 
effectiveness of the passenger rights framework overall by introducing rights for passengers when 
switching modes.  

(b)  Is the form of Union action (choice of instrument) justified, as simple as possible, and 

coherent with the satisfactory achievement of, and ensuring compliance with the objectives 
pursued (e.g. choice between regulation, (framework) directive, recommendation, or 
alternative regulatory methods such as co-legislation, etc.)? 

The impact assessment evidenced that regulatory measures are necessary to achieve the objectives 
of the initiative. A regulation is the most appropriate instrument to ensure common implementation 
of the measures envisaged, while reducing the risk of distortion within the single market, which could 
result from differences into how EU Member States transpose the requirements into national law. 

(c)  Does the Union action leave as much scope for national decision as possible while achieving 
satisfactorily the objectives set? (e.g. is it possible to limit the European action to minimum 
standards or use a less stringent policy instrument og approach?) 

Not applicable. 

(d)  Does the initiative create financial or administrative cost for the Union, national 

governments, regional or local authorities, economic operators or citizens? Are these costs 
commensurate with the objective to be achieved? 

[If the proposal is accompanied by an impact assessment, please ensure that the response is 

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consistent with the tables on cost and benefits in annex 3.] 

The  costs  of  the  initiative  are  relatively  minor  and  are  commensurate  with  the  objectives  to  be 
achieved.  Costs  for  terminal  operators  and  intermediaries:  5.2  million  per  year  (of  which,  EUR  5.1 
million for carriers, EUR 0.1 million for terminal operators and EUR 1,401 for intermediaries). One-off 
administrative costs for carriers and intermediaries: EUR 57.5 million (of which, EUR 57.4 million for 
intermediaries and EUR 0.1 million for carriers).   

(e)  While respecting the Union law, have special circumstances applying in individual Member 

States been taken into account? 

Not applicable. 

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