Three years after the proposal of the European Commission to reform rail passenger rights, representatives both of European Parliament and Council reached political agreement on this dossier on 1 October 2020. However, the compromise hardly includes any positive reforms, which would make travelling by rail more attractive to passengers; on the contrary, concrete changes for the worse have been entered.
The Regulation on Rail and Passengers’ Rights and Obligations has been providing minimum protection for passengers traveling in Europe since 2007. However, during the trilogue negotiations, the competent rapporteurs of the European Parliament as well as the German Presidency missed the opportunity to extent these rights in accordance with consumers’ wishes. Instead, there should even be cuts on some of the rights of rail passengers.
The greatest negative aspect is the fact that in future railway operators no longer have to compensate passengers in case of excessive delays if these occur due to “force majeure“. This force majeure clause is already enshrined in passenger rights regarding busses and coaches , shipping and aviation sector; however, in practice it causes a large number of disputes, as in particular airlines only often refer to force majeure. However, instead of harmonising passenger rights to appeal force majeure for all transport companies independent of mode of transport, the rights of rail customers have now been levelled down. Extreme weather events, natural disasters or the conduct of third parties, against which railway operators cannot protect themselves, e.g. cable theft, people on the tracks or emergency responses, should be rated as force majeure. Hence, it is only small comfort that strikes expressly shall not be rated as force majeure.
This political agreement is also regrettable as it renders a ruling by the European Court of Justice meaningless, which still confirmed in 2013 that railway operators had to pay compensation, independent of whether force majeure existed or not. In its report, the European Parliament too had rejected the introduction of force majeure as an exception clause with a comprehensive majority of 533 Yes votes (and 37 No votes). However, it was not able to persuade the Council within the trilogue negotiations to act accordingly.
There have been no changes with regard to the amount of compensation in case of delays, if these were not caused by force majeure: passengers continue to receive 25 % of the ticket price if the delay lasts one to two hours; if the delay exceeds two hours, passengers will receive 50 %. In it position, Parliament had demanded for the entire ticket price to be refunded if a delay exceeds two hours; but again, it was not able to assert itself.
Little progress was also made regarding the right of passengers to through-tickets, hence tickets, which comprise several single tickets for segments of one journey. Instead of making sure that railway operators are obliged to offer through-tickets, the European side failed to make this offer mandatory. In doing so, an important opportunity has been missed to ensure that – with regard to cross-border long-distance travel - rail transport is better positioned to establish itself with regard to air travel. If tickets for individual routes do not count as through-tickets but as separate tickets, the passenger, for example, has also no claim to support or a free meal, if connection trains have been missed.
This political agreement within the framework of the trilogue negotiations has yet to be confirmed by European Parliament and Council. Even if it only happens in exceptional cases, it would be nevertheless be pleasing if this compromise would not be confirmed by one of these two institutions and if the now put-together package has to be opened again.