Transport Law on Passenger Rights

Marko Pavliha, Marko Pavliha

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000402124
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto civile

Europe and also the rest of the world has experienced a boom in mobility over the last thirty years. In light of the protection of increasing number of consumers – passengers it is almost logical that during the past few decades, international and European transport law has developed almost to revolutionary extent, especially in the field of private aviation (air) law with the introduction of unlimited liability of carriers for death and injury of passengers and commendable sophisticated rights in case of denied boarding, cancellation of flights and long delays. This book will cast light through a critical prism on the most important characteristics of the international transport law, the EU legislation and jurisprudence regarding passenger rights during the carriage by air, sea, rail and road. One of the ideas which, however, needs further research is that the commendable legal solutions and experience of the EU can serve as an excellent framework for a new holistic international convention on passengers rights in all transport modes.

1 Introduction

Marko Pavliha

It has been beautifully described by Robin Chase, an American entrepreneur, that transportation is the centre of the world, the glue of our daily lives, because when it goes well, we do not see it and when it goes wrong, it negatively colours our day, makes us feel angry and impotent, curtails our possibilities.

The glue of transport(ation) itself is transport law, which lato sensu covers a very broad spectrum of legal branches, a noble blend of common law and civil law traditions, including maritime law, aviation (air) law, rail law, road law, and multimodal law, including public and private law issues. However, stricto sensu it refers to the contracts of carriage of goods, passengers, and luggage (baggage) by various means of transport, entailing specific rules with respect to passenger rights.

Many articles and several books have been written on legal and other aspects of passenger rights in air transport and also in other transport modes; however, none of them to our knowledge treats the subject comprehensively and holistically. Thus the idea of a new monograph which has been sparked by the paper published in 2013 in European Transport Law.¹

1 Marko Pavliha, Enlightenment of the European Attitude towards Passenger Rights: In dubio pro consumatore (2013) European Transport Law, XLVIII(3), 229–245.

Europe and also the rest of the world have experienced a boom in mobility over the last 30 years. In light of the protection of increasing numbers of consumers – passengers – it is almost logical that during the past few decades, international and European transport law has developed to a revolutionary extent, especially in the field of private aviation (air) law with the introduction of unlimited liability of carriers for the death and injury of passengers and commendable sophisticated rights in case of denied boarding, cancellation of flights, and long delays. The safety- and consumer protection-orientated achievements are to be attributed especially to the International Air Transport Association (IATA), International Civil Aviation Organization (ICAO), European Civil Aviation Conference (ECAC), the Commission on Air Transport of the International Chamber of Commerce (ICC), and the Commission of the European Union (EU). The latter set the objective to introduce passenger protection measures to all modes of transport in the 2001 White Paper and has indeed succeeded admirably.

It is therefore fair to say that presently the EU is more or less the only area in the world where citizens are protected by a full set of passenger rights – whether they travel by air, rail, ship, or bus and coach (there are some positive exceptions, for example the US federal and intrastate laws on common carriers’ responsibilities, including airlines, trains, cruise ships, and buses). The existing EU rules regarding passenger rights may be described as a symbiosis of ethics and law, providing minimum protection for travellers and facilitating mobility and social integration within and across transport modes. Additional rights derive from the Charter of Fundamental Rights, the EU consumer rules, the Package Travel Directive, national contract law provisions, and international conventions as transposed into EU law.

However, as explained in the special Communication from the Commission to the European Parliament and the Council – A European Vision for Passengers: Communication on Passenger Rights in All Transport Modes – the comprehensive package of rights is not yet completely and correctly implemented. For instance, passengers are not sufficiently aware of their rights, “or they give them up in frustration because it is costly and cumbersome to defend them.” National authorities still apply EU law in different ways, confusing passengers and carriers and creating distortions in the market. The Commission has therefore insisted in its 2011 White Paper on Transport on the need to reinforce the implementation of current rules and improve them where necessary. Further to public consultation and increasing criticism from the aviation industry and academia of too creative case-law, it is expected that the regulation on air passenger rights will be revised sometime in the not-too-distant future.

According to the Commission, passenger rights are based on three cornerstones: non-discrimination, accurate, timely, and accessible information, and immediate, proportionate assistance. The most important rights cover the following aspects of carriage: (1) non-discrimination in access to transport, (2) mobility: accessibility and assistance at no additional cost for disabled passengers and passengers with reduced mobility, (3) information before purchase and at the various stages of travel, notably in case of disruption, (4) right to renounce travelling (reimbursement of the full cost of the ticket) when the voyage is not carried out as planned, (5) fulfilment of the transport contract in case of disruption (rerouting and rebooking), (6) assistance in case of long delay at departure or at connecting points, (7) compensation under certain circumstances, (8) liability of carrier to passengers, also for the loss or damage of their baggage, (9) an accessible, fast, and efficient system of complaint handling, and (10) full application and effective enforcement of EU law.

The increasing need for multimodal transportation requires a renewed legislative framework for passenger rights to deal with the issue of disruption at connecting points in an intermodal voyage. Intermodality enhances the effectiveness of passenger protection by facilitating re-routing or providing appropriate information on intermodal travel connections at the earliest possibility. Transport globalization requires “through tickets” (a single transport contract for several legs within one mode) and “integrated tickets” (establishing a transport contract for an intermodal travel chain) which facilitate travel and improve passenger rights. Heavy weather conditions and volcanic eruptions affecting planes, trains, and road transport in the past few years have highlighted the need for more flexibility in Europe’s transport systems and for more effective, intermodal solutions to preserve the mobility of passengers and businesses through enhanced preparedness, coordination, and co-operation between all stakeholders.

Despite the fact that the EU is so far one of the few regions of the world or perhaps the only one with minimum standards across all transport modes benefiting all passengers in Europe, including third-country nationals travelling on transport services covered by EU regulations, the law is not perfect or flawless and is yet to be upgraded, especially in the field of carriage of passengers by air following the (un)expected originality of the Court of Justice of the EU in Luxembourg (CJEU) in construing some of the vague provisions of the relevant regulation (the Court should not perform the role of legislator). The rules must be applied consistently in practice which requires the proper education and training of all working in transportation. To improve passenger protection beyond EU borders, passenger rights issues will be addressed in bilateral and international agreements for all modes of transport, as laid out in the White Paper.

It is hoped the European transportation law will inspire international governmental and non-governmental organizations to follow the trend of seeking balance between carriers and passengers in order to achieve just, fair, uniform, and certain international passenger rights all over the globe. According to the rule in dubio pro consumatore, in the event of any doubt, the provisions of the international conventions, the EU and national legislation, and contracts of carriage ought to be interpreted in the manner most favourable to the person whom they are intended to protect, namely the consumer of the transport service.

This book casts light through a critical prism on the most important characteristics of international transport law, EU legislation, and jurisprudence governing passenger rights in all modes of transport, also in such difficult times as the COVID-19 pandemic. In particular, it discusses the role of international organizations in providing and protecting passengers’ rights, the EU institutions and passenger rights (legislative and judicial development), as well as passenger rights during carriage by sea, carriage by air, carriage by rail, and carriage by road.

It could be argued and proposed that the commendable legal solutions and experience of the EU can serve as an excellent framework for a new holistic international convention on passengers’ rights in all transport modes, but this is already beyond the scope of the present textbook. There are also new phenomena which need further research and new publications, such as transportation network companies (for instance, Uber), private space tourism, autonomous vehicles and unmanned transport, etc.

The book does not offer practical guidance or legal procedures for passengers who experience delays, cancellations, loss of luggage, and other problems when travelling in the EU. All these instructions are concisely explained on the official EU website concerning air, rail, bus, coach, and ship passenger rights, including “travel and coronavirus.”² However, for ease of reference all the major EU regulations dealing with passenger rights may be found at the end of the book as the appendixes.

2 See <https://europa.eu/youreurope/citizens/travel/passenger-rights/index_en.htm> accessed 21 October 2020.

After this short introduction, Chapter 2 springs up from the fact that over the last decades, passenger mobility has increased considerably which necessarily brings increasing problems, such as cancellations, lost and damaged luggage, and delays in the arrival or departures of planes, ships, trains, and coaches. Several international organizations, including the ICAO, the International Maritime Organization (IMO), the Intergovernmental Organization for International Carriage by Rail (OTIF), the Organization for Cooperation of Railways (OSJD), the International Rail Transport Committee (CIT), or the International Road Transport Union (IRU), have contributed to the creation of a separate transport legal framework which, originally, lacked a consumer-orientated perspective. Recent developments in international organizations within the sphere of consumer rights are enabling the emergence of regimes that provide an additional layer of protection to passengers. This chapter examines the contribution of technical and regional international organizations towards the protection of the rights of passengers in international carriage by air, sea, and land.

Chapter 3 is dedicated to the development of the policy and the legislation and case-law on passenger rights in the framework of the EU. It is divided into four parts. First, the legal system of the EU is introduced with a particular emphasis on the fact that the EU legal system is not independent, but it has to be understood, interpreted, and applied in light of the interdependency of EU law and the relevant national law of member countries and also international law. The competence of the EU in the field of transport is shared with the member states. The second part deals with the primary law of the EU as the legal framework. The freedom to provide services in the field of transport is governed by the special provisions of Part Three, Title VI of the Treaty on the Functioning of the European Union (TFEU) relating to transport. A number of activities have been carried on to improve these basic rules, because the passenger rights legislation has been underestimated for a (too) long time. The transport policy of the EU is presented in the third part. Several programmatic documents of the EU institutions have been adopted; they have no legal value outside the EU institutions, but they may have an influence on the activities of other EU institutions to follow them in a legally binding form. Finally, the fourth part presents an overview of the EU secondary legislation on passenger transport. Some common legal issues are underlined concerning the application or interpretation of EU law. The problems of coexistence of the EU rules with the rules of international law and those of the national legal system are analysed, mostly referring to the case-law of the Court of Justice of the European Union.

Chapter 4 recognizes the great importance of carriage of passengers by sea and also by inland waterways. However, acknowledging that the 1976 Convention on the Contract for International Carriage of Passengers and Luggage by Inland Waterway never entered into force and, consequently, that there is no international regime in force regulating the carriage of passengers in inland waterways, this chapter focuses on carriage by sea by providing an overview of the provisions of international treaties as well as European legislation aimed at protecting the interests of passengers carried by sea and safeguarding their rights including: the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 and the 2002 Protocol thereto; Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents; 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 waterways and amending Regulation (EC) No 2006/2004 and Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004; as well as Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC among others. Moreover, the interplay between the regime created by the Athens Conventions and the European system for the protection of sea passengers’ rights is analysed. Finally, it is argued that, despite the apparent advantages brought by the international and EU instruments, large areas of passenger law and law relevant to the cruise industry remain to be covered by national consumer laws; hence, states are encouraged to embed the principles discussed in this chapter into their national framework regulating the sea passengers’ rights.

Chapter 5 examines Regulation 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 No 295/91, as well as a few other EU regulations and the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air. It provides a comprehensive overview of the existing legal European and international rules on various air passenger rights and air carriers’ liability, and the long-awaited reform. Furthermore, the most important decisions of the Court of Justice of the EU are presented, especially with respect to delay, the legal concept of extraordinary circumstances which may exempt air carriers from the payment of special compensation in the event of cancellation of flight or delay at arrival, and some other relevant issues, for example the relationship between the Montreal Convention and EU law. It is argued, inter alia, that the liability exclusion based on extraordinary circumstance favouring large airliners should be replaced by the longstanding stricter doctrine of vis maior which would be more fair and beneficial to passengers in light of the rule in dubio pro consumatore.

For decades, rail has struggled to become a competitive sector that is able to compete with other transport modes, such as road and air transport. Passengers’ protection was in this respect halted until some basic competition rules were adopted and enforced. Chapter 6 briefly looks at the process of establishing competition on the single railway market, followed by examination of the EU regulatory framework protecting EU rail passengers. Additionally, decisions of the Court of Justice in this area are discussed. In contrast to air transport, they are considerably rare and concern issues related to delay and fare without a ticket. Finally, the proposed and indeed recently accepted recast of the EU rail passengers’ rights legislation is analysed with aspects of the on-going debate within the two EU legislators, with the Parliament generally supporting consumers and the Council being concerned about the potential financial burden placed on rail operators. It is argued that the level of the rail passengers’ protection is closely linked to the level of competition among rail passenger services’ providers. Gradual increase of competition on the market, supported by new digital tools, should also increase the rights of rail passengers which has commendably happened during the last legislative process on the recast.

The final chapter, Chapter 7, examines the rights of passengers during carriage by road. Basic concepts describe the differences between buses and coaches, the modal split of inland passenger transport, and the fact that the legal framework for passengers’ rights in carriage by road is the most recent to be delineated. A brief history shows the development of bus transport in the nineteenth and twentieth centuries. Despite the fact that the Convention on the Contract for the International Carriage of Passengers and Luggage by Road (the CVR Convention) of Geneva of 1 March 1973 does not have many contracting parties, it is an important source of law for international road transport. The CVR Convention has never become a part of EU law, so the first important piece of legislation...