EU passenger rights are comprehensive but passengers still need to fight for them

Executive summary

About passenger rights

I

Over the last 20 years there has been a boom in travel in all modes of transport in Europe. In response, the European Union has taken steps to ensure a minimum level of protection for passengers in the four modes of public transport: air, rail, waterborne and bus. In 2011, the Commission set 10 core EU passenger rights that are common to all modes of transport. Passenger rights are guaranteed in regulations for the four modes of public transport. The extent of coverage and specific rules differ from one regulation to another.

How we conducted our audit

II

We assessed to what extent passenger rights are effectively protected, by examining whether:

• the scope and reach of regulations effectively protected passenger rights and if they were actually obtained;
• passenger rights were effectively enforced.

III

We carried out interviews with the Commission and visited 10 Member States: the Czech Republic, Germany, Ireland, Greece, Spain, France, Italy, the Netherlands, Poland and Finland. In all Member States the audit scope included air transport while rail, waterborne and bus transport were covered only in some. We also carried out two surveys of passengers to assess the awareness and knowledge of passenger rights.

What we found

IV

The main modes of public transport are covered in the regulations, which makes the framework unique globally. However, many passengers are not sufficiently aware of their rights and frequently do not obtain them due to problems with enforcement.

V

We noted some good practices applied in other countries outside the EU which, if applied in Europe, may further enhance the quality of EU passenger rights. The 10 core rights are meant to protect all passengers travelling on all four modes of public transport. The extent of coverage of protection depends on the specific mode of transport used.

VI

Numerous provisions of the regulations can be interpreted differently. The concepts of information, assistance and conditions for re-routing are not sufficiently defined in the regulations. The amount of compensation does not maintain its purchasing value. Furthermore, numerous limitations on the jurisdiction of the National Enforcement Bodies’ and derogations provided in the regulations significantly narrow the coverage of passenger rights.

VII

To benefit from the passenger rights framework passengers need to be aware of their rights. However, the level of awareness remains relatively low. Awareness campaigns have focused on the existence of passenger rights but could have provided more practical guidance on how to proceed in case of travel disruption.

VIII

The current system of handling compensation implies a significant administrative burden on both carriers and passengers as millions of claims have to be individually submitted and handled. The procedures applied by carriers and NEBs in responding to individual claims are not transparent. Passengers on the same journey affected by a travel disruption can be treated differently.

IX

Enforcement of the regulations is the task of the NEBs. Currently their approach towards enforcing rights of individual passengers varies by mode of transport and Member State. Mostly the NEBs are reacting to complaints received from dissatisfied passengers.

X

The Commission’s monitoring of the implementation of the passenger rights framework has led to clarifications of the regulations. However, the fact that the Commission does not have a mandate to ensure enforcement of passenger rights has resulted in divergent application of passenger rights.

What we recommend

XI

The Court makes a number of recommendations concerning: improving the coherence, clarity and effectiveness of the passenger rights framework; increasing passenger awareness; further empowering the NEBs and enhancing the mandate of the Commission. We also provide 10 tips to try make everyone’s travel experience better.

Introduction

The concept of passenger rights

01

Over the last 20 years there has been a boom in travel in all modes of transport. In response, the European Union has taken steps to ensure a minimum level of protection for passengers in four modes of public transport: air, rail, waterborne and bus/coach¹.

02

To help EU citizens make full use of their consumer rights, in 2011, in its communication to Parliament and Council² the Commission summarises 10 core EU passenger rights that are common to all modes of transport (see Table 1).

Table 1

10 core EU passenger rights

1.Right to non-discrimination in access to transport	Protection against direct or indirect discrimination based on nationality, residence, disability or reduced mobility.
2.Right to mobility	Accessibility and assistance at no additional cost for passengers with disability and reduced mobility.
3.Right to information	Information provision before the purchase of tickets, at various stages of travel, and importantly, in case of disruption.
4.Right to renounce travelling in case of disruption	Right to withdraw from the contract and have ticket price reimbursed for long delays, cancelled travel or denied boarding.
5.Right to the fulfilment of the transport contract in case of disruption	Right to receive alternative transport service/transport as soon as possible, or to rebook for long delays, cancelled travel or denied boarding.
6.Right to assistance in case of delay or cancellation	Minimum level of care in case of long delays.
7.Right to compensation under certain circumstances	Financial compensation in case of long delays, cancelled travel and in case of involuntarily denied boarding in air travel.
8.Right to carrier liability towards passengers and their baggage	Liability and compensation for e.g. death or injury of passengers and damage to luggage.
9.Right to a quick and accessible system of complaint handling	Right to lodge a complaint with carrier if dissatisfied with service. May subsequently lodge a complaint with the competent National Enforcement Body (NEB).
10.Right to full application and effective enforcement of EU law	Right to count on the proper application of EU passenger rights by carriers. Enforcement of EU rules by NEBs should happen through effective, proportionate and dissuasive sanctions for infringements.

Source: COM(2011) 898 final.

Regulating and implementing EU passenger rights

03

Passenger rights are laid down in regulations for the four modes of public transport. Although the 10 core passenger rights are the same for all modes, different rules apply from one mode to another and the extent of passenger protection differs also. Passenger rights can be divided into those that apply to passengers on all journeys, such as the right to mobility or the right for information and those, applicable only when travel plans are interrupted, such as the rights to assistance or compensation.

Air passenger rights

04

The regulation³ concerning air passenger rights applies to passengers departing from an airport within a Member State, notwithstanding the origin of the carrier, or from an airport in a country outside of the EU to an airport in a Member State, but only if the operating carrier is an EU carrier. The passenger rights of persons with disabilities or with reduced mobility (PRMs) travelling by air are covered by a separate regulation (Regulation (EC) No 1107/2006⁴)⁵. In 2013, the Commission proposed a recast⁶ that was supposed to enhance and clarify air passenger rights while simultaneously reducing the cost of implementation of the regulation for air carriers. However, at the time of the audit the proposal had not yet been adopted.

Rail passenger rights

05

The regulation⁷ concerning rail passenger rights applies to rail journeys and services throughout the EU provided by one or more licensed railway undertakings. In 2017, the Commission proposed a recast of the regulation⁸ to enhance and clarify rail passenger rights. The proposal for recast is still under legislative examination.

Waterborne passenger rights

06

The regulation⁹ concerning waterborne passenger rights applies to passengers travelling from a port within a Member State notwithstanding the origin of the carrier or from a port outside the EU to a port within a Member State, provided that the service is operated by an EU carrier.

Bus passenger rights

07

The regulation¹⁰ concerning bus passenger rights applies to regular bus services and to those dedicated to tourism. The boarding point must be situated in a Member State and the scheduled distance of the service must be 250 km or more. Until March 2021, Member States may derogate from most of the provisions of this regulation as most domestic services do not have to be included in its coverage.

08

All four regulations require Member States to establish National Enforcement Bodies (NEBs) to ensure compliance with their provisions. Passengers may submit complaints concerning infringements of the regulations to the carrier or directly to the NEBs. The Commission has no direct role in the enforcement of passenger rights.

Audit scope and approach

09

Although there are minimal EU financial resources allocated to passenger rights, we decided to carry out an audit as it is one of the flagship policies that the European Union delivers directly to its citizens. The Commission considers the passenger rights legislation one of its great successes in empowering consumers. Taking into account that almost 15 years have passed since the first regulation on air passenger rights came into force, we decided to analyse the current state of implementation of the passenger rights framework.

10

In this audit we assessed to what extent passenger rights are effectively protected in the European Union. To that end, we examined whether:

• the scope and reach of regulations effectively protected passenger rights and if they were actually obtained;
• passenger rights were effectively enforced.

11

We held interviews with the relevant unit of the Commission’s Directorate General for Mobility and Transport, as well as with various European associations and passenger organisations.

12

We carried out two surveys to assess EU citizens’ awareness and knowledge of passenger rights as well as to gather their experiences as passengers:

1. A statistical survey, of 10 350 randomly chosen citizens from the 10 Member States visited during the audit (see paragraph 12). This survey was carried out between November 2017 and January 2018 via an online tool, using a statistically representative sample;
2. An open survey, freely accessible on our website, including the same questions plus an additional option to share travel experiences. This tool was available between December 2017 and January 2018 and 1 581 people took the opportunity to express their views on passenger rights.

13

In this report we mainly use the results from the statistical survey as it is representative of the EU population. The open survey provided real-life examples of travel disruption. Since the survey was anonymous, we have given fictitious names to the respondents. Furthermore, based on the passengers’ and our own experience, we propose our 10 tips for passengers to hopefully make their travel better (see Annex I).

14

We visited 10 Member States: the Czech Republic, Germany, Ireland, Greece, Spain, France, Italy, the Netherlands, Poland and Finland¹¹. We held interviews with the National Enforcement Bodies (NEBs) and main carriers in each mode of transport. As regards the modes of transport covered, air was included in all 10 Member States visited. Rail transport was covered in France, Germany, Spain, Italy, the Netherlands and Poland. Bus transport was included in the Czech Republic, Germany, Spain, Italy and Poland. Waterborne transport was included in Greece, Ireland, Italy and Finland. Overall, we interviewed 21 NEBs and 27 carriers.

Observations

The EU is committed to passenger rights but many challenges to implementation remain

Passenger friendly practices also exist outside the EU framework

15

To provide context to the EU efforts in passenger protection, we compared the EU’s passenger rights framework with those applied in Canada, New Zealand, the USA and Brazil. We found that in most cases the EU rules are stricter and more specific as they cover, to various degrees, all 10 core passenger rights (see Table 1).

16

We also found that, unlike in the EU, passenger rights are not always defined in legislation for the four modes of transport. In the comparator countries, the protection of passengers is often based on voluntary agreements between carriers. In some specific areas, such as the rules for carrying PRMs, grounded passengers and the protection of luggage; the rules elsewhere go a step further than in the EU (see Box 1).

EU passenger rights are sometimes unclear

Right to information: more clarity needed

17

Passengers have the right to information before, during and in certain cases, after the journey. In the case of travel disruption (cancellations, long delays), passengers should be informed of the nature of the disruption and the likely impact upon their schedule. While bus and waterborne regulations set a deadline of 30 minutes for carriers to provide information to waiting passengers, no such deadline exists for air and rail carriers (see Box 2).

Right to assistance is not well defined

18

The right to assistance¹² means that passengers are entitled to a minimum level of care in cases of travel disruption. The specific form of assistance depends on what the carriers are prepared to offer. Furthermore, no specific fines are provided for in EU passenger rights regulations if carriers ignore their obligation to offer assistance. The length of the delay giving passengers the right to assistance varies between modes of transport: 2-4 hours for air, 60 minutes for rail and 90 minutes for waterborne or bus. The rail and air regulations do not specify the number of nights or a ceiling for accommodation costs. Ceilings have been introduced to the waterborne and bus regulations, which also exclude any assistance in the case of extraordinary circumstances (see Box 3).

19

The terms “snack” “meals” or “refreshments” are widely used in the regulations but are not defined so therefore passengers do not know what to expect from carriers. Sometimes even when assistance is actually provided by carriers, the adequacy and quality may not be sufficient to cover the needs of passengers experiencing a travel disruption. It can be as little as a €3 voucher for refreshments at the airport or a bottle of water offered on a train delayed for several hours.

PRMs do not know what services they can expect

20

PRMs are a group of passengers with special needs. To be able to travel without unnecessary constraints, they need to have sufficient information about the conditions of travel and practical arrangements both on board and at the points of departure. The regulations use vague terminology regarding the timing and format of information provided to PRMs such as “in appropriate and accessible formats¹³” or “using appropriate alternative means¹⁴.”Due to problems such as these, the rights of PRMs are often not enforced (see Box 4).

Passenger rights regulations leave a lot of room for interpretation

21

All stakeholders consulted shared the view that the degree of clarity of the regulations is insufficient, leading to narrow interpretations by carriers and uncertainty as to how cases should be treated by NEBs. Since the air regulation came into force, approximately 180 cases have been debated at the European Court of Justice (ECJ) in order to clarify the meanings of delay, extraordinary circumstances, technical defects, time of arrival, etc. Moreover, both carriers and NEBs provided examples where national courts gave judgements on the same topics with contradicting outcomes.

22

In order to explain the ECJ rulings to all stakeholders, the Commission has issued a number of explanatory notes and interpretive guidelines¹⁵. It also published a summary of the most relevant ECJ judgements, most recently in July 2015¹⁶. However, the NEBs and carriers stressed that an uniform implementation of the regulations has not yet been achieved as the concepts of assistance, re-routing under comparable conditions and conditions for compensation are still not applied in a uniform manner.

EU passenger rights depend on carriers and are limited by derogations

Right to fulfilment of transport contract: passengers dependent on the actions of carriers

23

In cases of long delays, cancelled departures or denied boarding, passengers must be offered the choice between reimbursement of the ticket price or alternative transport under comparable conditions. In air travel, re-routing is only applicable in the case of cancellation or denied boarding; it is not provided in cases of long delay. In other modes the right to re-routing is granted if the expected delay at arrival or departure is at least 60 minutes in rail, 90 minutes for waterborne and 120 minutes for bus. However, under the current EU regulations there is no specific fine provided for if carriers do not provide re-routing within a reasonable timeframe (see Box 5).

24

Re-routing should be provided under comparable conditions. However, in the current EU regulations there is no guidance as to what constitutes comparable conditions. For instance, NEBs reported several cases of very long bus journeys offered by rail and air carriers, e.g. between Paris and Madrid (1 250 km) or between Milan and Catania (1 400 km including ferry).

25

We noted several cases, where passengers could have been re-routed immediately if carried in a different service class or by another company operating in the same mode of transport. However, carriers avoid this solution for financial reasons. This can lead to long waiting times for passengers as they must be placed on a departure operated by the original carrier in the same service class (see Box 6) which may only be available several days later.

Derogations in the regulations mean many passengers are not protected

26

According to the rail regulation, the Member States may derogate until 2024 from applying the majority of passenger rights. The derogations concern mostly regional and local departures. In 2017, only five Member States¹⁷ were applying the regulation in full. This means that 90 % of train users in Europe are not benefiting from most of their EU passenger rights¹⁸. International services, if a significant part of the journey is provided outside the EU, even if operated by an EU carrier, are also currently excluded from the regulation.

27

Most provisions of the bus regulation apply to regular services with a scheduled distance of service of 250 km or longer. Different interpretations of how to measure these 250 kilometres exist. Some NEBs and carriers take the full length of a route as the basis for the measurement and passengers travelling between two points along the route are thereby covered even though their journey is shorter than 250 km. Other carriers consulted assumed that the coverage started only if the distance travelled by the ticket holder was at least 250 km.

Passengers are not well aware of their rights

Level of awareness has not changed but more people have heard about passenger rights

28

In our statistical survey we asked respondents whether in the last 2 years they had travelled by air, used a long distance train service, been on a ferry or a cruise ship or travelled long distance by bus. The replies show that majority of Europeans, 86 %, travel rather often, and only 13 % of respondents have had no long distance travel experience within the last 2 years. The overall share of different transport modes used is presented in Graph 1. The most common frequency of travelling, 34 %, is between 2 to 5 times a year; 84 % of the respondents travel more than once a year (see the complete questionnaire in Annex II).

29

Many aspects of passenger rights require active behaviour, for example requesting assistance or compensation. Thus, passengers must be aware of their rights. In order to evaluate the level of awareness among Europeans, our statistical survey included three measurements:

1. evaluation of the self-proclaimed awareness;
2. evaluation of the reach of the term “passenger rights”;
3. evaluation of the knowledge of passenger rights.

30

In our statistical survey 39 % of respondents considered themselves to be quite aware or entirely aware of their passenger rights. While 3.6 % considered themselves to be entirely aware, 13.5 % declared themselves as not having any awareness at all (see Table 2 and Box 7). A similar result was obtained in the 2014 Eurobarometer report¹⁹, where the same 39 % of the respondents considered themselves to be aware of EU passenger rights.

Source: ECA statistical passenger survey.

Awareness does not mean knowledge

31

The statistical survey included a series of questions to test passengers’ knowledge. Respondents were given a theoretical situation of a 5-hour delay of their flight due to the airline’s staffing issues. They were provided with 15 options, out of which five came from the air passenger rights regulation and the other 10 were fictional. On average, the respondents selected two out of the five correct options.

32

Out of the three most selected options, the first is included in the passenger rights regulation (78 % of the respondents) (see Table 3). The 2^nd and 3^rd most preferred options were: “Reimbursement of other substantiated expenses” and “A flight with a different airline to the same destination.” Although neither of the two are expressly provided for in the regulation, they are among the most common requests that passengers approach carriers with.

Table 3

The share of options selected by respondents to what they believe they are entitled to if a flight is delayed by five hours or more due to airline’s staffing issues. Each respondent could select five options, correct answers are marked in green²⁰

	Share of the responses %
Free meals, refreshments and hotel accommodation if the delay is overnight	77.8
Reimbursement of other substantiated expenses	54.2
A flight with a different airline to the same destination	49.5
Monetary compensation of at least €250 if this results in at least three hours of delay at the arrival to your final destination	49.2
Free transport to return you to your accommodation, whatever the time of the day	45.2
Reimbursement of the full cost of the ticket	39.3
Transport to your destination by a different means (train, bus, etc.)	29.5
Re-routing to the airport closest to your original destination	26.7
Discount at duty-free shops for buying food	26.2
Access to the airport lounge	25.4
A travel-class upgrade	21.4
The right to choose any other departure date within the next two months	18.7
A free phone call	17.3
A return flight to the first point of departure	15.7
Psychological support	3.9

Source: ECA statistical passenger survey.

Passengers have difficulties to obtain their rights

Right to compensation for delay and cancellation dominates the passenger rights landscape

33

In cases of long delays, cancellations and denied boarding, passengers are entitled to financial compensation. All regulations offer compensation under certain circumstances; however, these circumstances differ significantly. Each of the four modes sets a different time limit for the right to compensation to become applicable: 3 to 4-hour delay in air (depending on the distance), 1 hour for rail, 90 minutes for waterborne and 120 minutes for bus.

34

The compensation amount varies greatly between the four modes of transport: for air it is fixed between €250 and €600 (see Table 4). For other modes it is linked to the price of the ticket (25 to 50 %). The amounts in the air regulation have not been adjusted for inflation since coming into force in 2004. If the compensation had kept pace with inflation, it would have increased by 25 %, the cumulative inflation rate (see Table 4).

Table 4

Compensation rates as a result of a delay in air passenger rights

Distance travelled	Compensation in euro in Regulation (EC) No 261/2004	Theoretical equivalent in euro after inflation
1 500 km or less	250	313
More than 1 500 km within the EU and all other flights between 1 500 and 3 500 km	400	500
More than 3 500 km	600	751

Source: EU air passenger regulations and ECA calculations.

35

The right to be compensated for delay and cancellation is the most administratively burdensome of the 10 core passenger rights. It accounts for some 90 % of the claims submitted to carriers and NEBs. The most contentious issue between carriers and passengers lies in the causes of delays and cancellations. If the cause is considered as being extraordinary by nature, carriers are exempt from payment (except for rail, where carriers have to compensate whatever the cause of the disruption). Since information on the reasons of disruptions is not publicly available, all passengers have to challenge such statements individually. The air NEBs interviewed estimated that approximately 60 % of the claims filed by passengers not satisfied with the airlines’ replies that there were extraordinary circumstances, were reclassified by the NEBs as not to have been extraordinary. This means that carriers can compensate one passenger and not another on the same flight (see Box 8).

36

We requested all carriers interviewed to disclose information about the number of complaints received and their financial effect. The information we obtained was limited and did not allow us to draw conclusions on the financial burden of these obligations. This information was not available as very few carriers are willing to share this data with the Commission.

37

The Commission in its proposal for updating the air regulations (see paragraph 4) seeks to reduce the cost of assistance and compensation borne by carriers stemming from passenger rights. To this end, it proposed increasing the waiting times which trigger compensation from three to five hours. Additionally, it proposed to cap the allowable period of accommodation to two nights with a maximum cost of €80 per night. However, this proposal was only based on very limited data made available to the Commission by the airlines.

Passenger rights are difficult to enforce for connecting journeys

38

The specific problems of connecting journeys (i.e. travels that include several segments under one contract of carriage) are the lack of clarity concerning compensation and the organisation of supervision by the NEBs. In these situations, even if the individual segments had delays that alone would not trigger compensation, the ultimate overall delay may nevertheless exceed the threshold set in the regulations. This situation requires the intervention of NEBs as none of the carriers concerned feel responsible for providing assistance or compensation if the disruption was not directly their fault (see Box 9).

39

It is not evident which NEB should handle potential complaints in such cases. The NEBs interviewed provided numerous examples of forwarding cases of connecting journeys back and forth to each other. The NEBs have taken steps to find a common approach to this problem but their position is not unanimous.

Passengers wish for alternative transport

40

Of the 10 core passenger rights, we asked respondents to choose the three most important for them. The most common response was the “right to receive alternative transport in the event of long delays, cancellations or denied boarding (see Table 1)” with 42 % of people putting it as their first choice. This was closely followed by “right to compensation in the event of long delays, cancellations or denied boarding,” with 40 %. Almost equally important was the right to assistance. To compare, in the open survey the most appreciated right was the same but it received 65 % support (see Table 5).

Table 5

Which rights do passengers consider most important?

Statistical survey	% of cases
Right to receive alternative transport in the event of long delays, cancellations or denied boarding	41.7
Right to compensation in the event of long delays, cancellations or denied boarding	39.6
Right to care (food, assistance) in the event of long delays	36.1
Right to compensation in the event of damage to your luggage	35.7
Right to a refund from the carrier in the event of disruption	34.7
Right to protection against discrimination based on nationality, residence or disability when you use public transport	31.3
Right to access to information in the event of travel disruption	29.9
Right to assistance at no cost for passengers with reduced mobility	28.9
Right to lodge a complaint with a carrier if you are dissatisfied with their service	9.7
Right to proper implementation of the regulations by public authorities	7.2

Source: ECA statistical passenger survey.

50 % of travellers have experienced significant travel disruption, most often in rail and air

41

We asked in the statistical survey if within the last two years respondents have been in situations where their journeys were cancelled or delayed, they were denied boarding or their luggage had been damaged. Out of the 8 961 respondents who had travelled within the last two years, 49.5 % experienced at least one of these travel disruptions. The survey indicated that the most common travel disruption was delay, which was experienced by 34 % of train travellers and 31 % of people taking a flight. It was followed by cancellations and loss or significant damage to luggage (see Graph 2).

42

We also tested if the respondents who had previous travel disruption were more aware of their rights. We found that the experience of previous travel disruption is no indicator of increased knowledge of passenger rights. Sometimes the disruption can encompass nearly all possible problems (see Box 10).

No information about travel disruption is publicly available

43

Regulations do not oblige carriers to report incidents of travel disruption to the public, with the exception of rail carriers, who are obliged to annually publish the number and categories of received complaints, processed complaints, response time and possible improvement actions undertaken. Carriers are reluctant to disclose data on travel disruptions occurring on their routes (see paragraph 36). Neither is there any registry managed by the NEBs that would record delays or cancellations of individual departures or numbers of cases received per carrier or per departure.

Passenger rights benefits are requested by only 1/3 of passengers as they do not know what to do or do not expect a satisfactory outcome

44

When travel disruption occurs most of the benefits are not available automatically. The number of people making a request is usually smaller than the number of passengers affected (see Box 11). We asked the carriers interviewed to provide us with the approximate number of people that take active measures. Rail and air carriers estimated that on average 1/3 of passengers contacted the carrier after having experienced travel disruption. This figure is consistent with our statistical survey, where out of the 4 437 respondents who had experienced some travel disruption, 32 % declared that they had contacted the carrier and sought compensation or other kind of assistance.

45

In the statistical survey, 20 % of the passengers having had travel disruption stated that they suffered quietly and took no action. When we asked why they had remained passive, the most common reason given was the unlikelihood of a satisfactory response from the carrier. As shown in Graph 3, other major causes were a lack of awareness or a lack of practical knowledge on how to proceed.

Enforcement varies and depends on the practices in each Member State

NEBs differ in their structure and enforcement practices

The structure of the NEBs is not uniform and the scope of their work depends on the mode of transport

46

All four modes of transport require the Member States to establish National Enforcement Bodies to ensure compliance with the provisions of the regulations. We found that NEBs had been setup in all visited Member States. In some cases they were established just to cover a single mode of transport, whereas in others more than one mode of transport is under their remit.

47

The NEBs for air, bus and maritime travel are responsible for all departures within their territories and arrivals of EU carriers from non-EU countries (known as territorial enforcement). NEBs for rail cover the carriers, which are registered under their jurisdiction (known as entity-based enforcement). Problems may occur when rail carriers depart from Member States other than their own. In such a case the NEB supervising a specific carrier may not be empowered to investigate an event that took place in another Member State. However, we noted that in practice the responsibility of NEBs is not very clear to passengers and this is also true in the bus and waterborne sectors. None of the bus and ferry operators interviewed had been contacted by a NEB of another Member State.

48

Furthermore, there can be an additional distinction between international and domestic traffic and the separation of NEB functions between local governments. This is the case for bus travel in Poland and Spain. While there is a body set up at the national level for international traffic, domestic traffic is under the responsibility of regional authorities and their jurisdiction depends on the place where the carrier obtained its license.

Not all NEBs resolve the individual claims of passengers

49

According to the regulations, passengers must be notified that it is possible to submit complaints concerning infringements of the regulations to the designated NEBs. In most cases, passengers have to first refer a complaint to the carrier and only if the outcome of this procedure is unsatisfactory, can they address their complaint to the NEB. While passengers might expect the NEB to be the first avenue of appeal, in many cases the NEB does not handle individual financial complaints and passengers have to look for other solutions to obtain due compensation.

50

As a result of an ECJ judgement²¹ of March 2016, some air NEBs consider their role as purely ensuring general enforcement (Germany, Italy, Finland), while others also deal with individual complaints. This makes it very difficult to put into practice the provision from the air regulation that passengers can complain to any NEB about an alleged infringement wherever it happened²². The first NEB the passenger applied to may accept individual cases while the second NEB to which the complaint is transferred may deal with general enforcement cases only.

The statistics show that the air NEBs handle many more claims than NEBs in rail, waterborne or bus

51

In general there is a wide variety of practices amongst NEBs. For example, deadlines for handling complaints can range from two months (Poland) to as much as four years (Germany), while in some Member States no official deadline is fixed (Finland, France). The average length of a procedure for air NEBs ranges from 42 days (the Netherlands) to more than one year (Germany).

52

The number of sanctions imposed by NEBs and the monetary amounts involved, vary greatly among Member States as they are not fixed in EU legislation. In the air sector they may range from €50 (Poland) to €250 000 per passenger (Ireland), depending on the seriousness of the infringement. In the Netherlands, a cumulative fine for an incident reached as high as €1 million. However, out of the 10 Member States visited, only the Dutch air NEB publishes information on sanctions, together with the airline name.

53

For most air NEBs the numbers of complaints received over the last three years show an increasing trend (see Table 6). The main reason for claims from passengers to NEBs is disagreement as to whether extraordinary circumstances actually caused delays (on average 45 % of all claims) followed by the same question on cancellations (19 %).

Table 6

Statistics for the years 2015 to 2017 on complaints handled by the 10 air NEBs

Member State	Total number of complaints
	2015	2016	2017
Czech Republic	370	672	934
Germany	2 844	3 075	3 211
Ireland	719	846	981
Greece	993	1 367	1 465
Spain	11 343	17 649	16 700
France	6 775	5 960	6 115
Italy	5 763	6 078	3 731
Netherlands	812	1 361
Poland	5 402	5 980	7 226
Finland	1 434	1 845	2 015

Source: Available information obtained during country visits.

54

The NEBs in other modes of transport have a relatively lighter workload. While rail NEBs frequently have issues to solve, bus and ship NEBs deal with a low numbers of cases. For example, while the Polish air NEB had more than 7 000 complaints in 2017, the bus NEB handled only four.

55

We noted that the actual number of complaints from passengers to rail, bus and waterborne carriers is much higher than the number of cases reaching the NEBs. This indicates that most of the complaints are resolved at carrier level. Sometimes the industry standards are in line with or exceed the obligations of carriers arising from EU passenger rights regulations and the carriers are tending to solve issues on a voluntary basis.

Claim agencies and Alternative Dispute Resolution bodies are filling the enforcement gaps left by the NEBs

Alternative Dispute Resolution bodies bring elements of negotiation and compromise to the enforcement of passenger rights

56

Apart from the NEBs, passengers can refer to other bodies to claim their rights, namely, Alternative Dispute Resolution bodies (ADR), European Consumer Centres²³, claim agencies or consumer organisations. Passengers can also try to resolve their cases in civil courts, especially if they insist on getting compensation.

57

ADRs offer a simple, fast and low-cost out-of-court solution to disputes between consumers and traders. According to the EU Directive²⁴, ADRs should be available for all types of domestic and cross-border disputes and Member States should make ADRs easily accessible. Although there are ADR bodies dealing with general consumer complaints in all Member States, carriers are mostly engaged with the ADRs for their respective transport modes. ADR opinions are not always binding on the carrier.

58

While the ADR procedure is usually free of charge for passengers, carriers may have to pay for each procedure handled, notwithstanding its results. As the costs of each procedure can be much higher than the amount of compensation due, some carriers interviewed prefer to pay-out the requested compensation to avoid ADR proceedings.

59

Some NEBs expressed the opinion that the ADR procedure was incompatible with the principle of passenger rights as the aim of the ADRs is to mediate a mutually acceptable solution, which can mean some passengers agreeing to less compensation than they were entitled to.

Passenger rights have led to the creation of a new industry of claim agencies

60

Claim agencies offer the management of claims for compensation for disrupted travel on behalf of passengers. Some airlines stated that the share of cases facilitated by claim agencies could be up to 50 % (see Box 12).

61

Some claims agencies request significant handling fees (up to 50 % of the compensation due). There have been cases where the agencies have requested compensation from carriers without the passengers concerned being aware of this action. At least one NEB (Greece) and some airlines have taken steps to reduce claims from agencies by requesting complainants to include bank account details of the lead passenger. This prevents any direct payments to the claim agencies. In Greece, the introduction of this rule reduced claims facilitated by the agencies by more than 50 %.

The Commission is enabling the exchange of experiences between NEBs but has no mandate to ensure uniform enforcement of passenger rights

The Commission can only monitor the implementation of passenger rights

62

We found that the Commission’s mandate does not extend to ensuring that the enforcement in Member States is pursued in a uniform manner. Therefore, the role of the Commission is to monitor the implementation of the passenger rights framework, initiating infringement procedures as necessary. Furthermore, it offers a platform for NEBs to exchange information and organises meetings of NEBs for specific modes of transport. It also replies to queries sent by NEBs concerning interpretation of the regulations.

63

According to the EU regulations, NEBs are not obliged to report on their activities directly to the Commission. Therefore the Commission has limited knowledge about the practices applied by the NEBs in general and the number of cases they deal with. The Commission gathers information about passenger rights implementation from the queries it receives and via exchanges with NEBs.

The Commission has taken steps to increase passenger awareness but with little impact

64

The Commission has taken a role in enhancing passenger awareness and has initiated campaigns informing passengers of their rights. Posters were displayed at all airports at which we did walk-through tests. However, in the waterborne, bus and rail terminals, information about passenger rights had little or no visibility.

65

An awareness-raising campaign for air and rail was undertaken by the Commission between 2010 to 2012. It was followed up by another campaign between 2013 to 2015 which was extended to cover maritime and bus travel. In 2016, the Commission launched their first on-line information campaign on social media. Its main objective was to raise awareness, increase visits to the passenger rights section in the Your Europe portal and downloads of the passenger rights app. Results so far show that the portal received nearly 400 000 visits and over 40 million people were reached during the campaign. By mid-2018, the app has been downloaded 240 000 times.

66

Neither the app nor the Your Europe website provide practical guidelines for passengers on how to act during travel disruption, contact the carriers or make a claim. The information provided to passengers through these means is necessary and usually correct but it lacks the detail that passengers need when faced with travel disruption.

Conclusions and recommendations

67

The EU’s commitment to passenger rights is indisputable as the main modes of public transport are covered in the regulations to an extent we did not find in the countries we examined for comparison. However, passengers are not sufficiently aware of their rights and frequently do not obtain them due to problems with enforcement.

The EU is committed to passenger rights but many challenges to implementation remain

68

EU passenger rights provide a comprehensive framework for the benefit of passengers. However, we noted some good practices applied in other countries outside the EU which, if applied in Europe, may further enhance the quality of EU passenger rights (see paragraphs 15 and 16).

69

Passenger rights are sometimes unclear and limited due to derogations in the regulations. The rights to assistance, compensation, information and re-routing are not the same in the regulations for the different modes of transport (see paragraphs 17 to 27).

Recommendation 1 on improving coherence of the EU passenger rights framework

In order to ensure the best possible protection of passengers in all modes of transport, the Commission should by the end of 2020 carry out an analysis of the differences between the current passenger rights regulations, focusing on the 10 core passenger rights, to determine best practices. For this purpose it should also take account of current international practice.

70

Passenger rights are difficult to obtain as many provisions of the regulations can be interpreted differently by passengers, carriers and National Enforcement Bodies (NEBs) and indeed national courts. The concepts of information, assistance, care and conditions for re-routing are not sufficiently defined in the regulations. Furthermore, numerous limitations on the jurisdiction of the NEBs and derogations provided in the regulations significantly narrow the coverage of passenger rights (see paragraphs 38 to 45).

Recommendation 2 on improving clarity within the passenger rights framework

In order to better protect passengers during travel disruption the Commission should by the end of 2020 issue further guidelines or equivalent guidance defining:

1. minimum standards on information to be provided to passengers experiencing travel disruption;
2. carriers’ obligations to provide re-routing; including the use of alternative carriers.

71

To benefit from the passenger rights framework in cases of disruption, passengers need to take action. To do that, they must be aware of their rights. Despite efforts made by the Commission, the level of awareness remains relatively low. Awareness campaigns have focused on the existence of passenger rights but could have provided more practical guidance on how to proceed in case of travel disruption.

72

There is no registry of frequency or reasons for travel disruption per mode of transport or carrier at the European level. The NEBs do not usually verify nor publish any information concerning routes or carriers most affected by disruptions (see paragraphs 28 to 32).

Recommendation 3 on increasing passenger awareness

In order to increase awareness about passenger rights, the Commission should by the end of 2019:

1. take actions to promote and coordinate the launching of awareness campaigns by NEBs while fostering the participation of carriers and other stakeholders in order to ensure a wider reach of these campaigns;
2. prepare a guide for passengers on how to enforce their rights in practice. It could include references to case law and a model claim form to be presented to the carriers and the NEBs;
3. propose that the NEBs report on the frequency, causes and routes most affected by travel disruption within their area of competence.

73

The current system of handling compensation involves millions of claims being individually submitted and handled. However, the procedures applied by carriers and NEBs in reaction to individual claims are not transparent. Passengers affected by the same travel disruption can be treated differently without being aware of it, as the reasons for disruptions are not made public. The amount of compensation does not maintain its purchasing value (see paragraphs 33 to 37).

Recommendation 4 on improving the effectiveness of the passenger rights framework

In order to improve the effectiveness of the passenger rights framework and to solve the remaining challenges to enforcement, the Commission should by the end of 2021 address the following issues when reflecting on its proposals to amend the existing regulations. The issues should include:

1. setting minimum standards for assistance and care. Minimum thresholds should depend on the length of the disruption and the mode of transport used. For example, the minimum air passenger allocation for care could be 10 % of the medium rate of compensation (currently €400). For other modes of transport, the rate could be limited to 50 % of the air allocation;
2. reducing the number of derogations that limit the application of the regulation;
3. obliging the carriers to publish a note to passengers within 48 hours of the occurrence of the travel disruption of its causes and specifically, whether it was due to extraordinary circumstances;
4. obliging the carriers to execute automatic (without a specific request) compensation payments to passengers who have provided the necessary information at the time of purchasing the ticket;
5. introducing a mechanism to maintain the purchasing value of compensation rates.

Enforcement varies and depends on the practices in each Member State

74

Enforcement of the regulations is key to making the whole framework successful. Passengers need effective NEBs. Currently the NEBs’ approach towards enforcing the rights of individual passengers varies by mode of transport and Member State.

75

The most common activity of the NEBs is that of reacting to the complaints received from dissatisfied passengers. However, not all NEBs can handle individual compensation claims. The powers of the NEBs to sanction carriers varies from not applying any fines to fining significant amounts (see paragraphs 46 to 55).

76

The Commission does not have a mandate to ensure the full enforcement of passenger rights regulations. Its role as monitor of the implementation of the passenger rights framework has led to clarifications of the regulations but has not resulted in the universal application of passenger rights throughout Europe and in the four modes of public transport (see paragraphs 62 to 66).

Recommendation 5 on further empowering the NEBs and enhancing the mandate of the Commission

In order to empower the NEBs and to develop their supportive role vis a vis passengers while ensuring proper enforcement of passenger rights, the Commission should by the end of 2021address the following issues when reflecting on its proposals to amend the existing regulations. The issues should include:

1. providing the NEBs with further tools for the enforcement of passenger rights, such as:
   1. applying the principle of territorial enforcement;
   2. monitoring the carriers’ policies on assistance, care, information and re-routing;
   3. handing compensation claims submitted by individual passengers;
   4. sanctioning carriers for a failure to provide assistance, care and information.
2. enabling the Commission to obtain the necessary information from the NEBs in order to have a comprehensive view of the state of enforcement and giving it a mandate to perform quality control of the enforcement practices of the NEBs.

This Report was adopted by Chamber II, headed by Mrs Iliana IVANOVA, Member of the Court of Auditors, in Luxembourg at its meeting of 3 October 2018.

Audit team

The ECA’s special reports set out the results of its audits of EU policies and programmes, or of management-related topics from specific budgetary areas. The ECA selects and designs these audit tasks to be of maximum impact by considering the risks to performance or compliance, the level of income or spending involved, forthcoming developments and political and public interest.

This performance audit was carried out by Audit Chamber II Investment for cohesion, growth and inclusion spending areas, headed by ECA Member Iliana Ivanova. The audit was led by ECA Member George Pufan, supported by Patrick Weldon, Head of Private Office and Mircea Radulescu, Private Office Attaché; Pietro Puricella, Principal Manager; Erki Must, Head of Task; Aleksandra Klis-Lemieszonek; Zuzana Gullova, Marjeta Leskovar and Annekatrin Langer, Auditors; Petra Karkosova, secretarial assistant. Zuzanna Filipski and Richard Moore provided linguistic support.

Contact

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Tel. +352 4398-1
Enquiries: eca.europa.eu/en/Pages/ContactForm.aspx
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Twitter: @EUAuditors

More information on the European Union is available on the internet (http://europa.eu).

Luxembourg: Publications Office of the European Union, 2018

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