Rail Passengers' Rights Under Regulation (Ec) No
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Zbornik PFZ, 66, (2-3) 363-390 (2016) 363 RAIL PASSENGERS’ RIGHTS UNDER REGULATION (EC) NO 1371/2007 AND THEIR IMPLEMENTATION IN SPAIN: DOES THE SPANISH RAIL SECTOR REGULATION COMPLY WITH THE ACQUIS COMMUNAUTAIRE? Prof. Dr. Maria Victoria Petit Lavall * UDK: 347.763.4(46) Dr. Achim Puetz ** 339.923:061.1>(46:4EU) Izvorni znanstveni rad Primljeno: kolovoz 2015. Regulation (EC) No 1371/2007 of the European Parliament and of the Co- uncil, of 23 October 2007, on Rail Passengers’ Rights and Obligations, contains the basic EU rules regarding the protection of passengers in rail transport, both on a domestic and an international level. Similarly to what happens in carriage by air (Regulation No 2027/1997, as amended by Regulation No 889/2002) and sea (Regulation No 392/2009), the Rail Passenger Regulation refers —in its Articles 4, 11 and 15— to an international Convention, the Uniform Rules concerning the Contract of International Carriage of Passengers by Rail (Appen- dix A to the 1999 COTIF Convention). However, it introduces some additional rights that do not always fit easily into the framework designed by the Rules, especially as regards the liability of the carrier in case of delay, missed connections and cancellation. The only judgment of the European Court of Justice on this issue (Case C-509/11, ÖBB-Personenverkehr) addresses only part of the problem, in particular, the compensation of the ticket price in case of delay. Furthermore, Re- gulation No 1371/2007 does not prohibit the existence of national measures that improve the passengers’ protection, so domestic law has to be taken into account, too. In Spain, the relevant legislation was adopted in 2004 and has not been amended after the Regulation came into force, so some of its provisions are clearly * Maria Victoria Petit Lavall, Ph. D., Professor, Institute for Transport Law (IDT), Universitat Jaume I, Avda. Vicent Sos Baynat, s/n, Castellon de la Plana, Spain; [email protected] ** Achim Puetz, Ph. D., Lecturer, Institute for Transport Law (IDT), Universitat Jau- me I, Avda. Vicent Sos Baynat, s/n, Castellon de la Plana, Spain; [email protected] 364 M. V. Petit Lavall, A. Puetz: Rail Passengers’ Rights Under Regulation (EC) No 1371/2007... inconsistent with the acquis communautaire. The paper seeks to describe the exact content of the passengers’ rights under Regulation No 1371/2007 and to identify those domestic rules that cannot be applied any more since they are con- trary to European Union law and should therefore be repealed. Keywords: Rail transport, acquis communautaire, Spanish rail sector re- gulation, passenger protection I. INTRODUCTION More than a decade ago, in its 2001 White Paper “European Transport Policy for 2010: Time to Decide”1 the European Commission set as an objec- tive the introduction of measures for the protection of passengers in all modes of transport. Since then, considering the passenger as a consumer, and thus as the weak part of the contract of carriage, has been a constant feature in Community legislation that, faced with certain undesirable practices carried out by transport undertakings, has established minimum rights that are to be respected in any case.2 Although the air transport sector pioneered in establis- hing the first passenger protection regulation3, the measures adopted therein have been extended in a similar way to other modes of transport.4 As regards rail transport, the Community enacted Regulation (EC) No 1371/2007 of the European Parliament and of the Council, of 23 October 2007, on rail passen- gers’ rights and obligations, which entered into force on 3 December 2009.5 1 COM (2001) 370 final, of 12 September 2001. 2 European Commission (2002), Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions: “Consumer Policy Strategy 2002-2006, COM (2002) 208 final, para. 3.1.5.1. 3 Regulation (EC) No 261/2004 of the European Parliament and of the Council, of 11 February 2004, establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (O.J. L 46, 17 February 2004). 4 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 and amending Regulation (EC) No 2006/2004 (O.J. L 334, 17 December 2010); Regulation (EU) No 181/2011 of the European Parliament and of the Council, of 16 February 2011, concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (O.J. 55, 26 Febru- ary 2011). 5 O.J. L 315, 3 December 2007. A synoptic overview of its content can be seen, e.g., in Amerio, S. (2010), La tutela del viaggiatore nel trasporto ferroviario: un’occasio- Zbornik PFZ, 66, (2-3) 363-390 (2016) 365 This Regulation contains the EU legal regime on carrier liability in rail passenger transport by implementing the relevant part of the Uniform Rules concerning the Contract for International Carriage of Passengers and Luggage by Rail (CIV UR), Appendix A to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (Art. 6 § 1.a).6 Apart from the traditional liability for death and injury in case of accident, and for delays and incidents with the baggage (loss, damage and delay), particular attention is now paid to frequent cases of bre- ach of contract: cancellations, missed connections, delays or overbooking. It is precisely the obligation of the carrier and the correlative rights of passengers in such cases that shall be analysed in the present study. To this purpose, rail passenger rights according to Regulation (EC) No 1371/2007 shall be exami- ned, with special reference to Spanish domestic legislation, in particular, the 2003 Rail Sector Act (RSA)7, developed by the 2004 Rail Sector Regulation (RSR)8, as well as the 1987 Land Transport Organization Act (LTOA)9, all of which have been modified on repeated occasions. As a matter of fact, the draft of a new Rail Sector Act10 is being debated in Parliament at this moment, although it remains unclear whether it will be passed before the end of the present legislature. ne (forse) perduta, Contratto e Impresa/Europa, Vol. 15 (1), pp. 491-499; Piloñeta Alonso, L. M. (2014), El contrato de transporte terrestre de personas, in: Menén- dez, P. (Ed.), Régimen jurídico del transporte terrestre: carreteras y ferrocarril (pp. 855- 940), Cizur Menor, Thomson Reuters-Aranzadi, pp. 864 et seq. 6 The EU itself joined the COTIF by an Agreement between the European Union and the Intergovernmental Organization for International Carriage by Rail on the Ac- cession of the European Union to the Convention concerning International Car- riage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999 (O.J. L 51, 23 February 2013). The possibility that “regional economic integration organizations” access the Convention is expressly envisaged by Art. 38 COTIF. Spain, on its part, had already ratified the Convention on 7 June 2002 [published in the Spanish Official Journal (B.O.E.) No 149, 23 June 2006]. 7 Act No 39/2003, of 17 November (B.O.E. No 276, 18 November 2003). 8 Enacted by Royal Decree No 2387/2004, of 30 December (B.O.E. No 315, 31 De- cember 2004). 9 Act No 16/1987, of 30 July (B.O.E. No 182, 31 July 1987), developed by the Regu- lation enacted by Royal Decree No 1211/1990, of 28 September (B.O.E. No 241, 8 October 1990). 10 B.O.C.G. Series A, No. 152-1, 14 May 2015. 366 M. V. Petit Lavall, A. Puetz: Rail Passengers’ Rights Under Regulation (EC) No 1371/2007... II. THE RULES CONTAINED IN REGULATION (EC) No 1371/2007 1. Scope of application According to its Article 2.1, Regulation (EC) No 1371/2007 shall apply immediately to all rail journeys and services throughout the Community, both intra-Community and domestic, provided by one or more licensed11 railway undertakings.12 However, while this is true for some of the rules envisaged by the Regulation (Art. 2.3)13, paragraphs 4 and 5 of Article 2 allow for the Mem- ber States to grant, among other things: a) a temporary exemption (for a peri- od of no longer than five years, which may be renewed twice for a maximum period of five years on each occasion) from the application of the remaining provisions of the Regulation to all domestic rail passenger services14; and b) an exemption without any temporary limit from the application of the remaining provisions of the Regulation to urban, suburban and regional rail passenger services.15 11 The rules on licensing of railway undertakings are contained as of today in Chapter III of the Directive 2012/34/EU of the European Parliament and of the Council, of 21 November 2012, establishing a single European railway area (O.J. L 343, 14 December 2012), which replaced as of 15 December 2012 the Directive 95/18/CE, mentioned in Art. 2.1 of Regulation (CE) No 1371/2007. 12 For the definition of the term “railway undertaking”, Art. 3.1 of Regulation (EC) No 1371/2007 refers to Directive 2001/14/EC of the European Parliament and of the Council, of 26 February 2001, on the allocation of railway infrastructure capac- ity and the levying of charges for the use of railway infrastructure and safety certi- fication (O.J.