New passenger rights in rail transport from June 7, 2023

The Agency for Passenger Rights provides information on the new version of the EU Regulation "on rail passengers' rights and obligations" (Regulation 2021/782). This comes into force on June 7 and introduces a significant change in the form of "extraordinary circumstances", in which the rail company no longer has to pay compensation for delays.

"In addition to some improvements, the new version also brings innovations in the area of compensation for delays, which represent a deterioration from the passenger's point of view. The regulations on through tickets remain complex," says Maria-Theresia Röhsler, Head of apf.

Improvements:

In addition to some clarifications (e.g. the right to a ticket refund or assistance explicitly also in the event of a train cancellation), the new EU regulation includes the following improvements for passengers:

• Transportation of bicycles: In new and older trains (after retrofitting), at least four bicycle stands per train must be provided. This number can be increased nationally;
• Travel information for passengers must be provided in real time wherever possible: Railroad undertakings must provide travel information to other railroad undertakings in real time;
• Persons with disabilities or reduced mobility: Among other things, the advance notification period for requests for assistance, for example for boarding, transferring and alighting, will be reduced to 24 hours.

Compensation for delays - this is changing:

What remains the same: If a train arrives at a station more than 60 minutes late, the passenger is entitled to compensation of 25 percent of the ticket price for a one-way ticket. For delays of 120 minutes or more, this compensation increases to 50 percent of the ticket price. The reason for the delay was previously irrelevant. This will change from June 7, 2023.

What is changing: The new EU regulation lists numerous exceptions where the obligation to pay compensation does not apply. However, the railroad company must prove that the delay, train failure and missed connection suffered was a direct consequence of one of the following scenarios and that the railroad company was unable to avoid the consequences despite exercising due care:

• Extreme weather conditions
• Major natural disasters
• Serious public health crises
• Fault of the passenger
• People on the track
• Cable theft
• Emergencies on the train
• Law enforcement measures
• Sabotage or terrorism

As the EU regulation does not provide more precise definitions, different interpretations could lead to discussions in the future.

If the company invokes one of the aforementioned reasons for a delay, it can refuse to pay the compensation amount.

"apf has many years of experience with exceptional circumstances in the aviation sector. We fear that rail companies will interpret the new scenarios rather narrowly and therefore refuse to pay compensation for delays in many cases in future," says Maria-Theresia Röhsler, Head of apf.

On the subject of strikes: The EU regulation explicitly mentions that strikes by the rail company do NOT constitute an extraordinary circumstance. In the event of a strike, passengers are therefore still entitled to compensation for delays.

The rail company's duty of care and the passenger's right to alternative transportation and, if applicable, overnight accommodation continue to apply

The extraordinary circumstances relate exclusively to claims for compensation for delays. This does not affect the obligations of the railroad companies in the event of delays and train cancellations with regard to care services to be provided, such as the use of alternative transportation by the passenger, his/her overnight stay in a hotel and the provision of drinks and meals.

Accommodation:

The innovation with regard to overnight stays is the future permissible restriction to three overnight stays in cases of exceptional circumstances. This restriction was previously not permitted.

Alternative transportation:

Furthermore, in the event of foreseeable delays of more than one hour, the rail company must offer a choice between a fare refund, alternative transportation and onward travel at a later time (Article 18).

The new features of alternative transportation in detail:

The EU regulation defines that, on the one hand, no additional costs may be incurred by the passenger in the event of alternative transportation or onward travel at a later time, even if a higher class is used. On the other hand, additional changes should be avoided and the total travel time should be kept as short as possible.

The rail company may also have to rebook the passenger onto a means of transport from another provider if the service cannot be provided itself.

In future, passengers will also have the right to organize their own onward journey and have the costs reimbursed by the rail company. The prerequisite for this is that the rail company agrees to the rebooking. Passengers will also be able to use other "public transport services" (bus; train) if the rail company does not offer an alternative travel option within 100 minutes of the scheduled departure time/missed connection/canceled train.

Alternative transportation explicitly mentions bus and rail services, but does not explicitly mention the use of air travel, which may be the best solution for long journeys.

Through ticket - still complex regulations

A major shortcoming of the EU regulation in the new version remains the important issue of through tickets. Through tickets are for consecutive rail services provided by one or more railroad undertakings (e.g. travel from Vienna to Salzburg with ÖBB, Salzburg to Innsbruck with WESTbahn). They are important for the assertion of passenger rights, in particular for reimbursement or compensation for delays.

This issue was also legally controversial in the previous EU regulation. The new EU regulation brings selective improvements, for example rail companies must offer through tickets if the trains are operated by a single company or wholly owned subsidiaries. There are also special compensation regulations if tickets from a ticket vendor are combined into one journey.

However, all of these rules in the new EU regulation are complex. One of the numerous and most important exceptions is the information provided by the companies before purchase that the tickets are not through tickets but separate contracts of carriage and therefore the passenger rights do not apply.

"Unfortunately, there is no simple regulation on the issue of through tickets, which is so important for cross-border journeys in particular and which creates clarity for the benefit of passengers," says Maria-Theresia Röhsler, Head of apf.

More work for the conciliation body?

For the apf, the adjustment of passenger rights in the rail sector will probably mean a significant increase in workload in the medium term. In future, alleged extraordinary circumstances will have to be examined independently. "We see from the air travel sector that the processing time of a procedure increases significantly if a company invokes an extraordinary circumstance. This is one of the reasons why we take a critical view of the introduction of extraordinary circumstances in the rail sector. On the contrary, the previous simple and passenger-friendly regulation for the payment of delay compensation has helped to make public transport more attractive and would also help to achieve important climate targets in the future," says Maria-Theresia Röhsler, Head of apf