Explanatory Memorandum to COM(2008)816 - Rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)816 - Rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 on cooperation ... |
|---|---|
| source | COM(2008)816  |
| date | 04-12-2008 |
Contents
- 1.1. Grounds and objectives
- 1.2. Maritime transport
- 1.3. Issues addressed
- 2. SCOPE OF APPLICATION
- 3. CONSISTENCY WITH OTHER EU POLICIES AND OBJECTIVES
- 4. CONSULTATION OF INTERESTED PARTIES
- 4.1. The public consultation
- 4.2. Collection and use of expertise
- 4.3. Impact assessment
- 5. LEGAL ASPECTS
- 5.1. Legal basis
- 5.2. Choice of instrument
- 5.3. Subsidiarity principle
- 5.4. Proportionality principle
- 5.5. Enforcement
- 5.6. European Economic Area and Switzerland
- 6. PROVISIONS OF THE PROPOSAL
- Article 2 sets out the scope of the Regulation
- Article 4 concerns conclusion of a transport contract that gives rise to rights enshrined in this proposal and establishes non-discriminatory contract conditions
- Chapter II Rights of disabled persons and Persons with Reduced Mobility
- Chapter III Obligations of carriers in the event of interrupted travel
- Chapter IV Information for passengers and handling of complaints
- Chapter V Enforcement and National Enforcement Bodies
- Article 27 requires enforcement bodies to publish an annual report on their activities
- Chapter VI Final provisions
The process of opening up the market for the carriage of passengers by sea was launched in 1986 and consolidated in 1992 when maritime transport markets were opened up between the Member States. However, the opening of a market is not complete until consumers, and not only companies, can derive the maximum benefits. Effective consumer rights are essential in order to ensure that liberalisation allows real choices and to give consumers the confidence to switch modes of transport if they wish to do so.
In the White Paper “European transport policy for 2010: time to decide”[1] the European Commission envisaged the establishment of passengers’ rights in all modes of transport and thus place users at the heart of the transport policy. The need for action in this regard was further highlighted in the Communication of 16 February 2005 i on strengthening passenger rights within the European Union in which the Commission presented a policy approach on how to extend passenger protection measures to all modes of transport. In that Communication the Commission already identified which rights should be strengthened by Community action irrespective of the mean of transport.
Passengers need a common set of principles that apply to all modes of transport, so that they can be more readily aware of their rights if something goes wrong with their trip, by whatever form of transport.
With regard to maritime transport the European Commission identified the following rights to be strengthened: 1) specific measures in favour of persons with reduced mobility (PRMs); 2) automatic and immediate solutions when travel is interrupted (long delays, cancellations or refusal of carriage); 3) passenger information obligations, and; 4) treatment of complaints and means of redress.
There is already a Commission proposal for a Regulation on liability of carriers of passengers by sea and inland waterways in the event of accidents i.
Twenty-two out of the European Union's 27 Member States are coastal countries. Four of those 22 Member States (United Kingdom, Ireland, Malta and Cyprus) are islands and eight others (Portugal, Spain, France, Italy, Greece, Denmark, Sweden and Finland) have archipelagos or large islands with big populations. In the archipelagos and the outlying and outermost regions of the European Union, where dense maritime passenger traffic is essential for their integration in the social and economic fabric of the European Union, there is often no alternative mode of transport.
Over the last thirty years, there has been a boom in mobility in Europe. For millions of citizens, travel has become a reality, mobility is a necessity. This phenomenon is due to a number of factors, but above all to economic growth, the completion of the internal market, lower travel costs and progress towards a European “area without internal frontiers”[4]. As a direct result of this development, 398 million people passed through the ports of the European Union in 2006 i
The importance of maritime passenger transport is also reflected in the number of operators involved. There are nearly 300 operators on the European ferry and RoRo (Roll-on, Roll off) markets, and Europe has approximately 800 passenger ports. Maritime passenger transport is evenly spread throughout Europe, with a similar number of routes carrying more than one million passengers per year in each of the three coastal zones of the European Union (Baltic Sea, North Sea, and Mediterranean Sea).
The purpose of this proposal is to establish the rights of domestic and international maritime passengers, including those who are disabled or persons with reduced mobility, in order to improve the attractiveness of and confidence in maritime transport, as well as to achieve a level playing field for carriers from different Member States and for other modes of transport. Essentially, the proposal lays down provisions on the following:
- Accessibility, non-discrimination and assistance to disabled persons and persons with reduced mobility;
- Obligations for carriers when travel is interrupted in the event of cancellation or delay;
- Obligation to inform passengers travelling by sea and inland waterways of their rights;
- Handling of complaints;
- General rules of enforcement.
This proposal covers domestic and international commercial passenger maritime and inland waterway services. Its aim is to establish minimum rules on information for all maritime passengers before and during their journey, addressing issues of interruptions of journeys, rules to be observed in the event of delays, dealing with complaints and providing assistance for persons with reduced mobility. With regard to the settlement of disputes, this proposal for a Regulation provides for the setting-up of independent bodies.
The existing legal framework governing the maritime transport sector is divided into the following categories: international conventions; European legislation (and subsequent implementation in national law); national legislation; and voluntary agreements.
Generally speaking, the international and European legislation that is in place focuses mainly on safety issues.
The main reference to critical events is found in the package tour Directive i; although this does not reflect a fully harmonised view: situations of unequal treatment of different passengers involved in the same type of event can have different protection.
Directive 2003/24, which amends Directive 98/18/EC on safety rules and standards for passenger ships engaged on domestic voyages,[7] includes specific requirements for PRMs, in particular access to the ship, signs, messages relay systems, alarms and additional requirements, designed to ensure mobility on board ship. The issue of accessibility to new ships for international services has been regulated by the International Maritime Organisation's Recommendation on the Design and Operation of Passenger Ships to Respond to Elderly and Disabled Persons' Needs i.
Regarding national legislation, in some EU Member States, there are also specific regulations concerning PRM rights in the transport sector and in particular in the maritime sector. These rules are mainly administered by a public authority and, to a certain extent, cover access by PRMs to maritime transport. It is uncertain to what degree these regulations give PRMs the right in practice to demand access to maritime transport and assistance if necessary.
However, other domestic and international maritime transport services are regulated at national level only for a number of matters such as non discrimination, assistance, information and accessibility to ports. The laws of the Member States offer differing solutions for passengers and a variable level of protection. The assistance provided to disabled persons differs markedly from on Member State to another.
This proposal enhances consumer rights by promoting price transparency and non-discrimination in the area of tariffs on grounds of nationality or residence. It also establishes the general principle of prohibiting the refusal to carry persons with reduced mobility. This category of passengers is often prevented from travelling by boat due to a lack of accessibility of these services and the failure of shipping companies to offer the necessary assistance. Any discrimination on grounds of disability or reduced mobility with regard to booking a trip or boarding a ship is forbidden.
The proposal for a Regulation will contribute to the achievement of the Treaty's objectives by ensuring an enhanced level of consumer protection, combating discrimination and social exclusion of persons with disabilities and allowing European citizens to take full advantage of the opportunities created by the internal market.
Establishing and further strengthening the rights of passengers reflects the high priority given by the Amsterdam Treaty to the protection of consumers. In its Communication 'EU Consumer Policy Strategy 2007-2013 Empowering consumers, enhancing their welfare, effectively protecting them' i, the Commission states that one of the priorities is to put consumers at the heart of other EU policies. The Communication notes that progress has been made in the integration of consumer interests, inter alia in air transport. The aim for the future is to build on these achievements in order to make integration of consumer interests more systematic. Therefore the Commission is extending the passenger rights that have been developed in the aviation sector to other transport modes, in particular as regards passengers with reduced mobility.
The proposal regarding the rights of passengers in maritime transport services is consistent with the objectives of combating social exclusion, as it establishes the principle of non-discrimination and assistance to disabled people. The proposal is also in line with Article 21 of the Charter of Fundamental Rights, which lays down a general principle of prohibition of any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic feature, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation. It also ties in with Article 13 of the EC Treaty, which enables the Community to combat discrimination in the areas of Community competence. The proposal is also in line with the United Nations Convention on Rights of Persons with Disabilities, signed by all the Member States and the European Community.
Article 12 of the EC Treaty provides that any discrimination on the grounds of nationality is prohibited. Therefore, in the maritime sector also, and without prejudice to public service obligations requiring social tariffs, contract conditions and tariffs applied by carriers or other ticket vendors shall be offered to the general public without any discrimination based on grounds of the nationality or the place of residence of the final customer or on the place of establishment of the ticket vendors within the Community.
The EU consumer policy dimension is at the heart of the next phase of the internal market, as set out in the Commission's communication to the Spring European Council on the Single Market Review i. The single market generates benefits for consumers by widening choice and lowering prices and providing adequate protection.
In this respect, the establishment of rights for passengers travelling by sea or inland waterways will complement the progress achieved in the transport sector within the framework of the European Single Market. This proposal ensures that maritime passengers can enjoy improved protection in order to fully benefit from the Single Market and have the confidence to take advantage of it.
In 2006, the European Commission launched a public consultation on maritime passenger rights, which partly focused on the protection of the rights of persons with reduced mobility during a journey by sea and inland waterway. The results of this consultation were published on DG TREN's website on 6 December 2006, and supplemented by the conclusions of the meeting held on 18 January 2007 between stakeholders and DG TREN services.
Respondents were virtually unanimous in the view that there should be a common minimum level of protection for passengers' rights throughout the EU, irrespective of the mode of transport or whether a journey takes place wholly within a single Member state or crosses an internal or external frontier. It was emphasised that maritime passengers are often among the most vulnerable members of society, who are not accustomed or do not have the means to lodge a complaint or to stand up for their rights.
The contributions received revealed a clear division between maritime operators and their associations and federations on the one hand and consumer associations on the other, even though all of them agree that a minimum level playing field is necessary. As a general rule, operators see only a limited need for regulation at Community level, whereas consumer associations call for extensive rights for passengers and even more so where the rights of PRM passengers are concerned. Most of the replies received from Member States governments supported a further strengthening of protection in the sector through EU intervention.
As regards PRMs, the majority of respondents, including all Member States and local authorities who contributed to the consultation, consider that the rights of persons with reduced mobility should be governed by the same four principles (non-discrimination, access, assistance and proper information) whatever the mode of transport used, subject to the specific features of each mode of transport.
All respondents to the consultation also agree on the following point: namely, that the additional costs of measures to improve accessibility and assistance for PRMs should not be borne solely by the latter.
At the meeting between stakeholders and DG TREN services held on 18 January 2007, none of those present when explicitly asked challenged the need for legal regulation and harmonisation at EU level.
Nevertheless, the different contributors to the consultation have varying perceptions as to the scale of the problem, regarding certain issues such as information, accessibility and enforcement.
In October 2006 the Commission received an opinion from the European Energy and Transport Forum which encourage Community action in the field of maritime passengers' rights.
The Commission also took into consideration an independent study commissioned by DG TREN in 2005-2006 on the “Analysis and assessment of the level of protection of passenger rights in the EU maritime transport sector”. This study examined the rights of passengers confronted by disruptions but also the protection of the rights of persons with reduced mobility.
The overall conclusions of the general study were that the protection of passengers was not fully satisfactory owing, among other things, to a lack of uniformity regarding the extent and depth of protection of the rights of passengers; the lack of a framework of immediate and predefined solutions in cases of cancellations and delays; and the lack of information to passengers about their rights in the case of a critical event.
Moreover, regarding PRMs, it was concluded that there are significant differences between Member States in terms of the protection of PRMs' and that there is room for improvement of their situation; particular improvements can be made as regards accessibility in ports and ships, non-discrimination and assistance.
The impact assessment carried out in accordance with the established Guidelines essentially covered principles of compensation and assistance in the event of cancellations and delays, rules of accessibility, non-discrimination and assistance to disabled persons and persons with reduced mobility; quality standards and information obligations, rules for handling complaints and for monitoring compliance.
Four policy options were assessed:
- 'Business as usual': no EU action and continuing with existing national legislations;
- Voluntary agreements (exchange of best practice ) developed and adopted by ship operators to improve the situation of persons travelling by sea and inland waterway;
- EU coordination and exchange of best practices to be developed to enhance national legislations;
- Community legislative intervention (for instance, by means of a Regulation) establishing improved rights of persons when travelling by boat.
Summary of the results of the impact assessment:
As regards the principle of non-discrimination and assistance to disabled persons and persons with reduced mobility option 4: 'Community legislative action to improve the rights of persons when travelling by boat' was selected as the best one.
The 'establishment of a fully fledged system' option appears to be the most effective as regards assistance and information obligations in the event of an interrupted journey. Stronger protection of passengers will result in better services being offered.
The impact assessment report together with its annexes accompanies this draft regulation.
The legal bas is for the proposal is set out in Articles 71 and 80 of the Treaty establishing the European Community, to which the co-decision procedure applies.
The main objective of the proposal is to ensure an adequate level of protection of maritime passengers in general and of passengers with reduced mobility in particular. The rules established by the present proposal should be applied in a uniform and effective manner across the European Union to ensure both an adequate level of protection for maritime passengers and a level playing field for carriers. As the European legislators have agreed, co-regulation or self-regulation 'will not be applicable where fundamental rights or important political options are at stake or in situations where the rules must be applied in a uniform fashion in all Member States' i. A regulation that is directly applicable appears to be the most appropriate instrument to ensure coherent application of the rules in all Member States. The Community has already chosen a regulation as the most appropriate legal instrument to protect the rights of air and rail passengers, and so achieve enforceable and equivalent passenger rights for maritime transport.
Passenger protection is a problem on a European scale and which requires a solution at Community level. The liberalisation of a market and taking into account consumer interests, especially disabled persons and persons with reduced mobility, are two complementary aspects of the internal market.The aim of the proposal is essentially to ensure that maritime passengers enjoy the same rights and level of protection across the European Union. Given the international dimension of this mode of transport, it is impossible for a single Member State or group of Member States to satisfactorily resolve the issues related to passenger transport services; thus Community action is called for.
The Commission is conscious of the danger of over-regulation and is maintaining the emphasis placed by the Lisbon European Council on simplifying the regulatory environment.
The Commission has confined its proposal to areas where specific Community rules are necessary and avoids subjects which are better left to self-regulatory measures. The proposal is limited to areas where the need for Community action is clear and widely accepted. It is therefore proportionate to the objective sought and appropriate to the circumstances in which it is pursued. Without harmonisation, passengers would, at best, enjoy different rights and, at worst, have no legal protection at all. Moreover, they would find it difficult to know their rights wherever they travelled in Europe and thus to insist on those rights being respected.
Maritime passengers in general and maritime passengers with disabilities or with reduced mobility are in a weak position if maritime operators fail to meet their obligations. The UN Convention of Rights of Persons with Disabilities provides for those who claim to be victims of violation by a state party of the provisions of the UN Convention, the possibility to submit a Communication. Therefore the development of further EC regulation will provide more effective uniform legal protection across the EU.
Strict enforcement of the proposed regulation will be necessary. The Commission’s proposal therefore includes an article requiring Member States to impose sanctions for non-compliance and to designate bodies responsible for enforcing the regulation and for handling complaints from such passengers. These provisions follow the same approach as that taken in the following pieces of legislation: the Regulation of the European Parliament and of the Council on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights; the Regulation concerning the rights of disabled persons and persons with reduced mobility when travelling by air; and the Regulation of the European Parliament and the Council on rail passengers' rights and obligations.
The proposal for a Regulation is of relevance to the European Economic Area and should therefore be extended to it. The proposal is also of relevance for Switzerland.
CHAPTER I GENERAL PROVISIONS
Article 1 sets out the subject matter of the Regulation.
Article 3 gives the definitions which are to be applied for the purpose of this Regulation.
Article 4 concerns conclusion of a transport contract that gives rise to rights enshrined in this proposal and establishes non-discriminatory contract conditions
Article 5 concerns an exclusion of waiver with regard to rights established by this Regulation.
Article 6 enshrines the general principle of prohibition of refusal of carriage to the benefit of the persons with reduced mobility.
Article 7 provides that such a rule is without prejudice to certain exceptions and derogations notably for justified safety reasons established by law.
Article 8 sets out general rules on accessibility for disabled persons and persons with reduced mobility.
Article 9 establishes the right to assistance at ports for disabled persons and persons with reduced mobility and designates the body which is responsible for assistance at ports, and the manner in which this body must finance such assistance. It is a fundamental principle that assistance shall be provided at no additional cost to the person with reduced mobility.
Article 10 provides for the right to assistance where no port exists, with reference to Article 9.
Article 11 also establishes the fundamental principle that assistance shall be provided free of charge to the person with reduced mobility in respect of assistance aboard ships.
Article 12 establishes the principles of assistance at ports, which includes accommodation of assistance animals and rules on transit. In order to provide quality assistance to persons with reduced mobility at all times, it also lays down timing obligations for the person with reduced mobility in the case of booking in advance.
Article 13 deals with transmission of information to a third party. In order to provide quality assistance to persons with reduced mobility at all times, operators (or port authorities if the latter decide to subcontract assistance to them) must receive early notice of their special needs prior to a trip. This article lays down rules for such transmission of information, and the deadlines to be respected in order to create obligations for operators under this Regulation.
Article 14 deals with quality standards for assistance to be established by carriers.
Article 15 lays down requirement to ensure appropriate training for personnel with regard to disability issues.
Article 16 establishes the right to compensation for lost or damaged wheelchairs and other mobility equipment when being handled at ports or onboard ships.
Article 17 establishes the obligation to provision of information in the event of interrupted travel.
Article 18 establishes the right to assistance to passengers in the event of delay or cancellation of service. The assistance includes meals, accommodation and transport with special attention to disabled persons and persons with reduced mobility.
Article 19 creates a right for passengers to be rerouted or reimbursed when there has been a delay beyond a certain length of time or there has been a cancellation of services.
Article 20 lays down the right to compensation in the event of travel being interrupted. This article further fixes the time limit within which the compensation is to be paid, as well as the method of payment.
Article 21 paves the way for seeking further compensation.
Article 22 encourages carriers to adopt arrangements with a view to enhancing passengers' rights and quality of service.
Article 23 establishes general right to travel information to all passengers.
Article 24 requires carriers, performing carriers and managing bodies of ports to provide passengers with information on their rights under this Regulation.
Article 25 establishes rules for a complaint handling procedure.
Article 26 establishes rules for the enforcement of the present Regulation, and in particular requires Member States to designate national enforcement bodies to which passengers may complain about alleged violation of their rights under this draft Regulation.
Article 28 establishes the principle of cooperation between national enforcement bodies
Article 29 requires that Member States should adopt dissuasive penalties in case of non- respect of passenger rights.
Article 30 provides that the Commission should report to the Council and the Parliament on the functioning of the Regulation three years after the entry into force of the Regulation.
Article 31 concerns the amendment to Regulation EC No 2006/2004 of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws.
Article 32 provides that the Regulation shall enter into force 20 days after publication in the Official Journal of the EU and shall apply with effect from one year after that date.
Annex I establishes the right to reimbursement or re-routing in case of advance booking by a disabled person or a person with reduced mobility who has been denied embarkation on the grounds of his or her disability or reduced mobility.
Annex II defines the scope of assistance to be offered to disabled persons and persons with reduced mobility in ports.
Annex III defines the scope of assistance to be offered to disabled persons and persons with reduced mobility aboard ships.
Annex IV relates to the content of disability-related training.