Documents considered by the Committee on 6 December 2017 Contents

6Rail passengers’ rights and obligations

Committee’s assessment	Legally and politically important
Committee’s decision	Not cleared from scrutiny; further information requested; drawn to the attention of the Women and Equalities Select Committee
Document details	Proposal for a Regulation of the European Parliament and of the Council on rail passengers’ rights and obligations (recast)
Legal base	Article 91(1) TFEU; Ordinary legislative procedure; QMV
Department	Transport
Document Number	(39062), 12442/17 + ADDs 1–3, COM(17) 548

Summary and Committee’s conclusions

6.1On 27 September 2017 the European Commission published a proposed recast of the existing Regulation on rail passengers’ rights and obligations.39 The proposal aims to increase the uniformity of the implementation of rail passengers’ rights across the EU, make targeted improvements to the passenger protections afforded, and reduce certain burdens on rail operators so that rail is not at a disadvantage relative to other modes of transport.

6.2The current EU legal framework in this area—Regulation 1371/200740 on rail passengers’ rights and obligations—aims to protect rail passengers in the EU by establishing common minimum rules throughout Europe. At present, passengers have rights to information, reservations and tickets, assistance, care and compensation in the event of delay or cancellation, free-of-charge assistance (for persons with disabilities and/or reduced mobility), compensation in the event of an accident, and a system of complaint-handling national enforcement bodies (NEBs).

6.3The Commission is concerned that these protections are not uniformly applied throughout the EU, because the Member States are permitted to exempt a wide range of domestic services (apart from certain mandatory requirements) from the Regulation’s application: long-distance services may be exempted until 2024; urban, suburban and regional services may be exempted for an unlimited period; and services of which a significant part is operated outside the EU may be exempted for renewable periods of five years, indefinitely. The Government has applied all of these exemptions, although they were not renewed in 2014 in Northern Ireland, where Regulation 1371/2007 now applies in full.

6.4The Commission observes that only five Member States currently apply the Regulation in full, with the others having exemptions in place to varying extents. They consider that this deprives passengers of their rights, and that the scope for exemptions should therefore be restricted. The proposal therefore brings forward the removal of exemptions for long-distance services from the current date of 2024 to 2020. It also proposes removal of exemptions for cross-border urban, suburban and regional services.

6.5The Commission states that its proposal seeks to strike a balance between strengthening rail passenger rights and reducing the burden on railway undertakings. It aims to strengthen rail passengers’ rights through the introduction of a general clause prohibiting any form of discrimination; a requirement that basic information about rights be provided at booking and during the passenger’s journey; a requirement that operators “make all reasonable efforts to make through-tickets available”, including to other operators; giving passengers who purchase multiple separate tickets the same rights as if they had purchased a single ticket (unless informed otherwise); and clarifying the complaint-handling process.

6.6The proposal modifies existing requirements in relation to persons with disabilities and reduced mobility (PRMs). Changes include improving rights to assistance on trains and in stations, making clearer the rights of PRMs to be accompanied by a personal assistant or assistance dog, and ensuring that, where information requirements apply, information is available in accessible formats. These changes align the regulation with the United Nations Convention on the Rights of Persons with Disabilities.41

6.7To reduce the burden on railway undertakings, the proposal introduces a force majeure clause that applies in situations caused by “severe” weather conditions and “natural disasters”. The Commission considers that the proposed amendment would help improve the competitiveness of the rail sector and reduce financial burdens. The proposed Regulation also enables railway undertakings to use a new right of redress if delays are caused by a third party’s fault or negligence.

6.8On 19 October 2017 the Parliamentary Under Secretary of State (Paul Maynard) submitted an Explanatory Memorandum to Parliament for scrutiny.42 The Minister states that the Government shares the Commission’s objective of strengthening the rights of rail passengers and supports, in principle, the proposal’s aim of standardising and improving passenger rights. He states that the Government believes that it is appropriate for the Commission to legislate in this area.

6.9In terms of the impact on UK stakeholders, the Minister observes, somewhat vaguely, that “most” of the requirements of the current (2007) Regulation are already met or exceeded through domestic rail provisions. However, the Minister does not provide a clear sense of the extent to which the proposal’s provisions are covered by domestic rail provisions, or what its impact will be. He acknowledges that the Government needs to “consider carefully” the detail of the proposals, and to consult with external stakeholders.

6.10In relation to the UK’s withdrawal from the European Union, the Minister states that the rights put in place by this proposal would apply equally to all rail passengers and therefore benefit rail passengers who are not EU/EEA citizens.

6.11No implementation period is envisaged, so the Regulation would enter into force almost immediately after its publication in the Official Journal of the European Union. Depending on how rapidly progress is made, it is therefore very possible that the Regulation will become directly applicable in the UK either before it leaves the EU or during the Prime Minister’s proposed Implementation Period.

6.12The proposed recast of the rail passenger transport rights and obligations Regulation is a substantial update of the existing Regulation, which dates back to 2007. The proposal would scale back the exemptions that are currently allowed, in order to improve the uniformity of the implementation of rail passenger rights throughout the EU. The proposal seeks to clarify and strengthen many aspects of rail passenger rights, particularly for persons with disabilities or reduced mobility. Finally, the proposal seeks to reduce certain burdens on rail operators, by introducing a force majeure clause for railway undertakings (as for other modes of transport) and granting them a right of redress.

6.13The Government indicates that it supports the proposal’s objectives and considers it appropriate for the EU to legislate to achieve them. However, it also acknowledges that detailed work on the proposal is still required and that it is seeking input from a range of stakeholders. In the meantime, there is a distinct lack of clarity regarding the impact that the proposed Regulation will have in the UK. For example, although the Government observes that “most” of the requirements of the current Regulation are already met or exceeded through domestic rail provisions, it does not specify which of the new requirements, if any, are not, and would constitute an additional right/obligation. The Government does not explain what effect limiting the scope of the current exemptions would have, in terms of UK services to which the entirety of the Regulation would subsequently apply. No analysis is provided of provisions in Articles 22 and 23, which appear to require that assistance for PRMs be available at all times when rail services operate, both in station and on board—potentially a highly significant provision.

6.14We therefore request:

clarification of which currently exempted rail services in the UK will be brought into the scope of the proposal;
a list of the specific additional requirements the proposed Regulation will introduce that are not met by current UK law;
a summary of any specific rights or other benefits that the Regulation will provide to persons with disabilities and reduced mobility (PRMs) that are not currently provided by UK law;
clarification of the apparent requirement, contained in Articles 22 and 23, that assistance for PRMs be available at all times when rail services operate, both in station and on board; and
an assessment of whether the Commission’s view that big market players, by selling through-tickets on their own services only, keep new entrants who cannot offer through-journeys out of the market, is applicable to parts of the UK rail market, and an assessment of the significance and likely impact of the proposed requirement in Article 10 that railway undertakings and ticket vendors “make all reasonable efforts to make through-tickets available”.

6.15We welcome the Minister’s assessment that the Regulation would have benefits for non-EU/EEA rail passengers travelling in an EU or EEA Member State. Nonetheless, in view of the UK’s impending withdrawal from the EU, we request a more detailed account of these implications. The Committee asks for:

clarification regarding whether, when the Regulation ceases to be directly applicable to the UK, there could under any circumstances be a reduction in any of the protections the proposed Regulation would otherwise afford to UK citizens and/or their enforceability;
clarification of whether, when the Regulation ceases to be directly applicable to the UK, UK railway undertakings will be subject to reduced legal obligations to EU citizens to whom they sell tickets and provide services, meaning that EU citizens would have reduced rail passenger rights in the UK; and
an account of what impacts and implications exiting the EU raises specifically for stakeholders in Northern Ireland, given that a number of Northern Ireland-Republic of Ireland services are in operation, and (unlike the rest of the UK) Northern Ireland Ministers opted not to continue to apply the exemptions in 2014.

6.16We ask the Government to provide the Committee with responses to the above questions, along with updates regarding the Government’s developing policy position in relation to the proposal, as well as its financial implications, by 24 January 2017 (or earlier if progress in Council requires it). In the meantime we retain this proposal under scrutiny and draw it to the attention of the Women and Equalities Select Committee.

Full details of the documents

Proposal for a Regulation of the European Parliament and of the Council on rail passengers’ rights and obligations (recast): (39062), 12442/17 + ADDs 1–3, COM(17) 548.

Background

The 2007 Regulation43

6.17Regulation 1371/2007 on rail passengers’ rights and obligations aims to protect rail passengers in the EU. It has been in force since 2009. The chief effects of this Regulation were to:

guarantee disabled persons and persons with reduced mobility non-discriminatory access to trains and assistance;
strengthen rail passengers’ right to compensation when their luggage gets lost or damaged (up to about €1285 per piece of luggage);
strengthen rail passengers’ right in case of death or injury through an advance payment to meet immediate economic needs. This advance payment amounts to at least €21000 per passenger in the event of death;
reinforce rail passengers’ right to compensation in case their journey gets delayed or cancelled: the minimum compensation amounts to 25% of the ticket price for delays between one and up to two hours and to 50% of the ticket price for delays of two hours and more;
give rail passengers the right to be informed comprehensively before and during their journey, for example about delays;
make it easier for rail passengers to buy tickets;
impose an obligation on rail companies and station managers to ensure passengers’ personal security in railway stations and on trains;
oblige rail companies to set up a complaint handling mechanism for the rights and obligations covered by the new regulation;
oblige Member States to ensure that passengers can lodge a complaint to an independent body, if passengers consider that their rights have not been correctly implemented; and
extend the existing rights of passengers under the Convention for the International Carriage by Rail (COTIF) which only covers international transport, in principle, to all domestic train services.

Exemptions

6.18Member States were also allowed to exempt the following domestic services from the application of the Regulation (apart from certain mandatory requirements):

Long-distance services, for a maximum of five years, renewable twice, i.e. until 2024;
Urban, suburban and regional services, for an unlimited period; and
Services of which a significant part is operated outside the EU, for a renewable period of five years (de facto no time limit).

The proposal44

6.19The chief provisions contained in the proposed Regulation are:

Limitation of exemptions to ensure uniform application of the rules (Article 3)—The Commission has noted that only five Member States currently apply the Regulation in full, with the others having exemptions in place to varying extents. They consider that this deprives passengers of their rights, and that the scope for exemptions should therefore be restricted. The proposal accordingly removes exemptions for cross-border urban, suburban and regional services; brings forward the removal of exemptions for long-distance services from the current date of 2024 to 2020; and, for services a substantial part of which are operated outside the EU, requires that Member States grant exemptions only if they can prove that passengers are adequately protected on their territory. Some core provisions of the Regulation (non-discriminatory conditions; availability of tickets, through-tickets and reservations; liability for passengers and luggage; persons with disabilities and reduced mobility) are never exempted;

Force majeure (Article 17)—Railway undertakings currently have to compensate passengers for delays caused by force majeure. The proposal introduces a force majeure clause that applies only in situations caused by “severe” weather conditions and “natural disasters”;
Prohibition of discrimination (Article 5)—The proposal introduces a general clause prohibiting any form of discrimination, e.g. based on nationality, residence, location or currency of payment. This aligns rail with other modes of transport. Passengers who feel that their rights have be infringed can turn to national enforcement bodies (NEBs) rather than having to initiate court proceedings under Article 18 of the Treaty on the Functioning of the EU (the general principle of Non-discrimination);
Fuller information about passenger rights (Article 30)—The proposal requires that they be given basic information on their rights at booking, e.g. printed on the ticket or electronically, and during their journey. Notices informing passengers of their rights have to be placed in prominent positions in stations and on board. This includes clarifying rights where passengers will use connected services for one journey, whether they buy one through-ticket or several separate tickets;
Through-tickets: greater availability and fuller information (Article 10)—By selling “through-tickets” (one ticket that covers all legs of a multi-leg journey) on their own services only, big market players keep new entrants who cannot offer through-journeys out of the market. The proposal requires railway undertakings and ticket vendors to make all reasonable efforts to make through-tickets available, including for journeys across borders and with more than one rail undertaking. The proposal therefore provides for passengers to be given fuller information on through-tickets;
Multiple separate tickets: equivalent rights (Article 10)—Selling separate tickets for journey segments allows railway undertakings to bypass obligations relating to compensation, re-routing and assistance. The revised Regulation establishes that customers who purchase separate tickets in this way are entitled to the same rights as if they had purchased a single through-ticket, unless the passenger is explicitly informed otherwise in writing. The railway undertaking must prove that it informed passengers where their passenger rights do not apply to the whole journey but only to its segments; and
Complaint-handling process (Article 33)—The proposal would require ticket vendors, station managers and infrastructure managers of certain stations (as well as railway undertakings) to put in place procedures for complaint handling. It proposes a deadline for complaints (two weeks for acknowledgement, three months for completing the procedure, extendable to six months for complex cases) and clarifies the responsibilities and competencies of national authorities responsible for the application and enforcement of passenger rights. Passengers should complain to rail operators in the first instance and then, if necessary, to an alternative dispute resolution body or an NEB. The proposal specifies NEBs’ responsibilities in cross-border cases and requires them to cooperate effectively.

6.20A range of changes are proposed in relation to persons with disabilities and reduced mobility (PRMs), in Chapter V (Articles 10 and 20–26), as set out below:

where there is no ticket office or accessible ticketing machine in the station of departure, PRMs shall be permitted to buy tickets on board the train at no extra cost (Article 10);
the proposal extends PRMs right to be accompanied to their personal assistant and/or assistant dog (Article 20);
if an undertaking exercises a derogation to sell a ticket to or make a reservation for a PRMs, subject to non-discriminatory access rules referenced in Article 20(2), it must make reasonable efforts to propose alternative transport options (Article 21);
where information requirements apply, information must be provided in accessible formats in line with the requirements proposed in the European Accessibility Act45 (Article 22);
assistance to PRMs must be available at railway stations and on board during all operating hours (Articles 22–23);
PRMs will be enabled to only make one advance request for assistance to cover their whole journey where their ticket allows separate journeys, with railway undertakings, station managers, ticket vendors and tour operators cooperating in order to facilitate this (Article 24);
when railway undertakings/station managers cause loss or damage to mobility equipment, assistive devices and assistant dogs they are liable for and must compensate that damage, and provide temporary replacements. Member States can no longer exempt compensation for such equipment (Article 25); and
requiring railway undertakings to provide disability awareness training to staff and to PRMs and to organisations representing them, upon request. Training must be given to staff on recruitment by way of regular refresher training (Article 26).

6.21Other changes which are proposed include:

Use of Delegated Acts to ensure consistency with international rules (Articles 36 to 37)—The EU is now a member of the Intergovernmental Organisation for International Carriage by Rail (OTIF). To ensure consistency with the Convention concerning International Carriage by Rail (COTIF) and the International Convention for the transportation of Passengers (CIV), the proposal gives the Commission the power to update Annex I to take account of amendments to the CIV. The Commission will also be enabled to adopt delegated acts to adjust the minimum advance payment amount payable in the event of death or injury in line with inflation;
Contingency plans for station and infrastructure managers (Article 18)—Under the 4th railway package, railway undertakings have to draw up contingency plans to protect and assist passengers in the event of major transport disruptions. No such obligations exist for other actors. To reduce the burden on railway undertakings, the proposal obliges station and infrastructure managers also to have contingency plans. Member States will decide on the detail and coordination of the plans with national authorities, for example; and
Right to redress for railway undertakings (Article 19)—Depending on applicable national rules, railway undertakings may have difficulties in obtaining redress from a third party responsible for a delay. The proposal enables railway undertakings to use a right to redress, in accordance with applicable law, if delays were caused by a third party’s fault or negligence. The measure aligns rail passenger rights with air passenger rights.

The Government’s view46

6.22In an Explanatory Memorandum submitted on 19 October 2017, the Parliamentary Under Secretary of State (Paul Maynard) states that the Government agrees that it is appropriate for the Commission to legislate in this area in order to ensure that the Regulation is applied more consistently across the European Union. The Minister notes that the recast Regulation remains a minimum harmonisation Regulation, meaning that Member States would be able to retain domestic passenger rights provisions that are more generous than the minimum standards in the Regulation.

6.23The Minister states that the Government “shares the Commission’s objective of strengthening the rights of rail passengers” and therefore “support[s] in principle the proposal’s aim of standardising and improving passenger rights, including by improving access for persons with disabilities or reduced mobility and the requirement for railway undertakings and station managers to ensure that staff have disability training and attend regular refresher training”.

6.24The Minister also states that it understands the Commission’s objective to make rail passenger services comparable to other modes of transport, in order to provide a more level playing field. The Minister states that the Government supports the principle of improved provision of information about passenger rights, and the need for passengers to have basic information on their rights at the point of booking a ticket.

6.25The Minister acknowledges the concerns the Commission has identified on the extensive use of exemptions by Member States, and states that he can appreciate that the Commission is keen to see uniform application of this across Member States; however, he adds that the Government will need to consider carefully the detail of the proposals, in particular any potential costs, in consultation with external stakeholders. The Minister clarifies that the exemptions permitted under Regulation 1371/2007 were put in place by the Department for Transport for Great Britain and by Northern Ireland Ministers for NI (although the exemptions were not renewed in Northern Ireland, meaning that the Regulation has been in full effect in NI since 2014). However, the Minister states that most of the requirements of the current Regulation are already met or exceeded through domestic rail provisions such as the train operators’ Disabled People’s Protection Policies, National Rail Conditions of Travel and the Equality Act.

6.26In terms of the financial implications of the proposal, the Minister states that some of the new requirements in the proposals may not necessarily produce new burdens for the rail sector, as in many areas UK domestic rail passenger rights requirements already exceed the minimum standards in both the existing EU Regulation and in the Commission’s proposals. However, he states that the detail of the proposal will be examined to determine whether there are financial implications for the rail sector or for the taxpayer.

6.27The Minister states that the Government will need to consider carefully the detail of the proposals, in particular any potential costs, in consultation with external stakeholders. He adds that the Government will be discussing the proposals informally with industry, passenger representative bodies and the ORR to inform our view of the proposals and their implications.

Brexit implications

6.28In relation to the UK’s withdrawal from the European Union, the Minister states that the rights put in place by this proposal, where it is in force, would apply equally to all rail passengers. It would therefore have benefits for rail passengers travelling in an EU or EEA Member State, who are citizens of countries outside the EU or EEA.

Previous Committee Reports

None.

39 Proposal for a Regulation of the European Parliament and of the Council on rail passengers’ rights and obligations (recast) 12442/17, COM(17) 548 http://europeanmemoranda.cabinetoffice.gov.uk/files/2017/09/12442–17.pdf.

40 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32007R1371&from=en.

41 Convention on the Rights of Persons with Disabilities (CRPD) https://www.un.org/development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html.

42 Explanatory Memorandum from the Department of Transport (19 October 2017) EM 12442/17.

43 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32007R1371&from=en.

44 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32007R1371&from=en.

45 Proposal for a Directive of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States as regards the accessibility requirements for products and services COM/2015/0615 final—2015/0278 (COD) http://eur-lex.europa.eu/legal-content/EN/TXT/DOC/?uri=CELEX:52015PC0615&from=EN.

46 Explanatory Memorandum from the Department for Transport (19 October 2017) EM 12442/17.

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11 December 2017