According to an opinion by Advocate General Jääskinen, delivered on March 14, 2013, rail passengers must have part of the cost of their ticket refunded in case of significant delay even if that delay is caused by force majeure.
In a recent ruling the Court of Justice ruled that an air carrier must provide care to passengers whose flight has been cancelled due even to extraordinary circumstances such as the closure of airspace following the eruption of the Eyjafjallajökull volcano.
The Regulation on rail passengers’ rights and obligations provides that a passenger who is facing a delay of one hour or more may request a partial refund of the ticket price from the railway company. This compensation is a minimum of 25% of the ticket price for delays of one hour to 119 minutes and a minimum of 50% for delays of two hours or more. The Regulation does not contain any exemption from this right to compensation in cases where the delay is caused by force majeure, such as adverse weather conditions, damage to the railway infrastructure or industrial action.
The test case
The Austrian Verwaltungsgerichtshof (Administrative Court) has asked the Court of Justice whether a railway company may nevertheless exclude its obligation to pay compensation when a delay, missed connection or cancellation is caused by force majeure.
Opinion of the Advocate General
In his opinion, Advocate General Niilo Jääskinen considers that a railway company may not exclude its obligation under the Regulation to pay compensation of the ticket price in cases where the delay is caused by force majeure.
He observes that there is nothing in the text of the Regulation to limit this obligation in cases of force majeure. The Regulation aims to enhance consumer protection and thus prevents any restriction of such a refund from being inferred from the general EU concept of force majeure. Had the EU legislature wanted to limit this obligation on grounds of force majeure, this would have been clearly indicated in the wording of the Regulation.
Rail transport is sui generis
The Advocate General furthermore rejects the application by analogy of force majeure rules contained in Regulations on passengers’ rights within other transport sectors, namely air, boat and bus travel.
He notes that, in the context of travel by train, the most usual causes of force majeure, namely adverse weather conditions, damage to infrastructure, and industrial action, have a foreseeable statistical frequency and can be taken into account when calculating ticket pricing.
NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.
The full text of the Opinion is published on the CURIA website on the day of delivery.
European Commission: DG Move portal on rail passengers’ rights