The decision of the Court of Justice of the European Union at the end of September concludes that railways may not be exonerated from liability for train delays in case of “force majeure”. While railway operators understand this judgment as aiming at a high level of consumer protection, in this case passengers, they do question the proportionality of this decision since other transport modes are not obliged to pay compensation for delays in case of extraordinary circumstances.
We will definitely analyse the European Court of Justice ruling in detail; in any case we can already state that the ECJ judgment provides a strong argument for what CER has been saying about for a long time: there is an urgent need to ensure a regulatory level playing field among transport modes, including in the area of passenger rights”, CER Executive Director Libor Lochman said.
“We will support our members with the implementation of the ruling and make sure that international passengers benefit from their rights as confirmed by the European Court of Justice. However we must be aware that this may have an impact on fares”, stated CIT Secretary General Cesare Brand.
This new scenarios clearly infringes the fair competition between transport modes principle. The Community of European Railway and Infrastructure Companies (CER) and the International Rail Transport Committee (CIT) are thus calling on the decision factors of the EU to ensure a more harmonised and consequent implementation of the “force majeure” principle within all transport modes.
Concretely, this means that rail passengers are entitled to financial compensation for a delay of more than 60 minutes even if the delay is due to a case of “force majeure”, for example in case of severe weather conditions causing railway line closure.
According to the ECJ, Regulation 1371/2007 on Rail Passenger Rights contains no cause of exoneration for delays, unlike for the aviation, maritime and coach sectors. If decision-makers had the intention to limit the right to compensation for delay on grounds of “force majeure”, they would have indicated this clearly in the Regulation, the ECJ said.
The Court then notes that the Uniform Rules, which exempt the carrier from its obligation to pay compensation in cases of force majeure, relate only to the right of passengers to receive compensation for damage or loss resulting from the delay or cancellation of a train. On the other hand, the compensation provided for by the regulation, calculated on the basis of the ticket price, has a very different purpose, which is to compensate the passenger for the consideration provided for a service which was not supplied in accordance with the transport contract. It is also a fixed-rate standard form financial compensation, unlike that provided for under the system of liability established by the Uniform Rules, which requires an individual assessment of the damage suffered. Moreover, as those two liability systems are quite different, in addition to receiving fixed rate compensation, passengers may also bring a claim for compensation under the Uniform Rules.
“In those circumstances, the Court finds that the carrier’s grounds of exemption from liability under the Uniform Rules are not applicable in the context of the liabi-lity system established by the regulation. In that regard, the Court notes that the regulation’s travauxpréparatoires unequivocally indicate that the EU legislature intended to extend the obligation to pay compensation to those cases in which carriers are exempt from their liability to pay compensation under the Uniform Rules”, the ECJ determines.
CER and CIT note that the European Commission had already submitted written comments to the ECJ to clarify that the rules actually establish a limit to railways’ liability in case of “force majeure”. The annex of Regulation 1371/2007 refers in fact to the Convention concerning International Carriage by Rail (COTIF), which states that “force majeure” is a ground for limiting the liability of railways in case of delays. This is also a general principle of contract law – nobody is expected to be liable for ‘force majeure’.
CER and CIT therefore call on the European Commission to ensure that railways compete with other transport modes on a level playing field, including in the area of passenger rights. In this regards, CER and CIT welcome the recently published report on the implementation of Regulation 1371/2007, where the Commission confirmed its intention to consider aligning the obligations among the different transport modes by asserting that railways are not obliged to pay compensation in the cases of “force majeure”.
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