Law in practice

In what circumstances do passengers have the right to meals and refreshments?

Article 18 § 2 of Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations (PRR) provides that “passengers shall also be offered free of charge meals and refreshments in reasonable relation to the waiting time, if they are available on the train or in the station, or can reasonably be supplied”. Do passengers who miss their connections because the first train was ten minutes late and who thus arrive sixty minutes late at their final destination because they take the next train, have a right to refreshments?

The right to meals and refreshments comes within the meaning of “standardised and immediate measures”. The European Court of Justice distinguished these from individual compensation dependent on the circumstances of the delay or cancellation of the transport service in its judgment on the IATA case (C-344/04). On the basis of this precedent, the CIT made a clear distinction in points 9 and 10 of the GCC-CIV/PRR between Article 18 PRR which provides for a series of collective actions (information on delays, distribution of meals and refreshments, organisation of accommodation, organisation of alternative transport) and Article 17 PRR which provides a right to compensation of 25 or 50% of the fare in the event of a delayed arrival and Article 32 CIV which provides a right to a hotel in the event of the last connection of the day being missed.

Article 18 PRR applies in the event of delays to trains on arrival or departure in excess of sixty minutes, whatever the cause of delay. By contrast, Article 17 PRR applies in the event of a delay to a passenger at the destination shown on his contract if the cause of the delay is attributable to the carrier.

In consequence, passengers who miss their connection because of a delay of ten minutes do not have a right to meals or refreshments. It is only if the train has a significant delay, in excess of sixty minutes, that passengers may claim refreshments or a meal. Distribution of refreshments is not on an individual basis; indeed it can hardly be individual for wholly practical reasons. In practice, assistance is provided in the train itself or in the station if the train is cancelled. The fact that passengers may arrive at their final destination with a delay of ten minutes or three hours isn’t taken into account at that stage. It may be that passengers affected by the delay to a train have a connection for a TGV two hours later (very common in Paris, for example) and in the end have no delay whatever at their final destination. Those passengers nevertheless receive assistance on their first train. Transport undertakings may not take individual delays into account at that stage. Individual delays are handled by undertakings’ customer service departments when passengers make claims.

Isabelle.Oberson(at)cit-rail.org / Original: FR / 2011-10-07

Returning from their skiing holiday in Austria, two passengers entrusted their skis to ÖBB to send to Switzerland. To begin with the skis were lost in Austria; after forty days they were found and sent on to their destination. During this period, the passengers hired new skis at a cost of around €1 000. To what compensation are the passengers entitled?

In accordance with Article 40 CIV, if registered luggage is not delivered within the fourteen days which follow the expected date of delivery, it may be considered to be lost. In that case the passenger will receive compensation equal to the value of the loss proven up to a maximum of 1 200 special drawing rights (SDR), equivalent to €1 344 (1), or if the value of the loss is not proven, compensation of SDR 300 (€336) per missing item.

If the luggage is recovered within a year, the carrier must notify the passenger and offer to deliver his luggage. In accordance with Article 43 CIV, the passenger has thirty days in which to accept delivery and return the compensation received for the loss. Nevertheless, the passenger is entitled to compensation for delayed delivery. This amounts to SDR 14 per day for up to a maximum of fourteen days, this thus is a maximum of SDR 196 (€220) per item.

In the case in point, the passengers are entitled to €440 for the two pairs of skis delivered late. On the other hand however, they are not entitled to compensation for the hire charges for new skis during the forty days of delay. The CIV Uniform Rules in fact cover liability for registered luggage exhaustively.

They do not leave any scope for the application of national law in contrast to the provisions for liability for personal injury or liability for delay. For the latter two, Articles 29 and 32 § 3 CIV refer specifically to national law for loss and damage not covered by the CIV Uniform Rules.

(1) DTS 1 = € 1.12 (rate on 30 May 2011 according to www.imf.org).

Isabelle.Oberson(at)cit-rail.org Original :FR

A Danish passenger who was travelling by train to a German airport missed his flight to the United States because of a fault on the train. Which railway undertaking (DSB or DB) should handle his claim and, as appropriate, pay compensation?

Under Article 55 § 2 CIV, passengers may make claims to the first or last carrier or the carrier having performed the part of carriage on which the event giving rise to the proceedings occurred. In addition he may bring an action against these same carriers. The law of forum will determine the extent of his right to be compensated for the fare for the missed flight.

The carriers in question may agree amongst themselves who will handle claims, pay compensation to passengers and bear the costs. In principle, members of the CIT settle these issues in accordance with the AIV (Agreement concerning the Relationships between Carriers in respect of International Passenger Traffic by Rail). However, the AIV does not currently cover the issue of which undertaking should handle a claim from a passenger who has missed his flight because an international train has been delayed. In fact, the AIV only covers those heads of liability explicitly specified by the CIV Uniform Rules and by the PRR. It is difficult to imagine international standardisation of those heads of liability which arise solely from national law (principally compensation for missed flights). Railway undertakings therefore need to make any agreements that are necessary.

In the absence of such agreements, Article 62 § 1 CIV covers the allocation of compensation paid under the CIV Uniform Rules. For compensation paid under the PRR or national law, any allocation between the carriers will depend on the national law applicable.

Isabelle.Oberson(at)cit-rail.org Original: FR

Railway undertakings operate several international bus and coach services, including services between Poland and Lithuania and between Germany and the Czech Republic. Readers may wonder if the CIV Uniform Rules or the PRR apply to these services. In principle, no. Nevertheless, despite that, in practice the undertakings may choose to apply them.

In principle, the CIV Uniform Rules apply to contracts for international rail-road carriage provided the carriage by road remains restricted to domestic carriage within a single state. In addition, the PRR only applies to rail transport services. International carriage by road is in fact subject to different legislation, either national law or the Convention on the Contract for the International Carriage of Passengers and Luggage by Road (CVR). The CVR was signed in Geneva on 1 March 1973 and eight European states are party to it (see the list on www. unece.org/trans/conventn/legalinst_28_OLIRT_CVR.html).

Within the European Union, the national law applicable to contracts is determined by the rules contained in Articles 3 and 5 of Regulation (EC) No 593/2008 (known as “Rome I”). Railway undertakings may choose between the following five national legal systems, the law of the country where:

1. the passenger has his habitual residence; or
2. the carrier has his habitual residence; or
3. the carrier has his place of central administration; or
4. the place of departure is situated; or
5. the place of destination is situated.

An international convention, such as the CIV Uniform Rules, may likewise be designated as the law applicable to the contract so that an international journey by road and rail can be subject to the same law throughout the journey. This provides greater legal certainty for both railway undertakings and passengers.

In any case, the choice of the law applicable must be made quite explicitly. It is recommended that undertakings indicate the legal regime on the ticket issued to the passenger in legible and comprehensible text.

Isabelle.Oberson(at)cit-rail.org Original: FR