The SNCB has announced today that they will change their general conditions of carriage so as to provide that passengers will receive compensation in case of delay even is such delay has been caused by an event of force majeure.
This change in the general conditions of carriage is the consequence of a recent decision of the European Court of Justice in the ÖBB-Personenverkehr case.
The case
The case was brought to the attention of the Court under a preliminary reference from the Austrian courts. Austria’s national supervisory authority had indeed summoned ÖBB-Personenverkehr AG, the national Austrian rail operator, to change its general conditions of carriage which provided, inter alia, that the passengers would not be entitled to compensation or reimbursement of costs incurred where the cause of the delay could be attributed to a list of force majeure events.
The Austrian supervisory authority decided that this clause of the general conditions of carriage of the operator was in breach of Community law and, in particular, Article 17 of Regulation 1371/2007 on rail passengers’ rights and obligations (PRR).
ÖBB took an action against the decision of the Austrian supervisory authority and the competent national court decided to stay proceedings and to refer the case to the ECJ.
The decision of the ECJ
In its decision, the ECJ follows the opinion delivered by Advocate General Niilo Jääskinen and states that rail operators cannot be exonerated from their liability to pay compensation for delays even when such delays have been caused by events of force majeure such as severe weather conditions.
This means that, even in cases of force majeure, the rail operator shall be obliged to pay compensation to the passengers in the amounts stated in Article 17 PRR.
The decision of the Court revolves around two fundamental concepts: a strict interpretation of the text of Article 17 and the refusal to compare different modes of transport.
The Court indicated that, as Article 17 PRR does not contain an exemption from liability in case of force majeure, such an exemption cannot be granted.
The Court followed the reasoning of the Advocate General and refused to consider that the grounds for excluding liability specified in Article 32, paragraph 2 CIV (force majeure, fault of the victim or of a third party) apply to Article 17 PRR. And this even if the recitals of the PRR clearly states that “it is desirable that this Regulation create a system of compensation for passengers in the case of delay which is linked to the liability of the railway undertaking, on the same basis as the international system provided by the COTIF and in particular appendix CIV thereto relating to passengers’ rights”.
Indeed, the ECJ indicates that a broad interpretation of Article 17 would go against the intentions of the legislator who decided not to explicitly include force majeure as an exemption from liability of the train operator.
The Court also refused to compare the force majeure exemptions granted to other modes of transport with the exemptions (or absence thereof) granted to rail operators.
The very flexible interpretation of the rule of law by the ECJ
The approach adopted by the ECJ in the ÖBB case is irreconcilable with the approach adopted in the aviation sector and, in particular in the Sturgeon case law and subsequent jurisprudence.
The Sturgeon case law concerns the interpretation of Regulation 261/2004 on air passengers’ rights. In the Sturgeon judgement, the ECJ ruled that, even if Regulation 261/2004 did not explicitly give any right to compensation to passengers whose flights were delayed, the Regulation should be broadly interpreted so that compensation would be payable.
The Sturgeon decision has been heavily criticised as it has been considered that the ECJ has abandoned the rule of law by creating a new type of compensation that was not provided for by the legislator. This broad “interpretation” has been followed, according to the Court, in the name of the principle of “equal treatment” between passengers whose flights had been cancelled and those whose flights had been delayed.
It would be interesting to know what justified the ECJ to abandon the rule of law and start making the law in the Sturgeon case and what, on the other hand, did not allow the Court to apply a general principle of European contract law that clearly inspired the PRR, such as the exemption from liability in case of force majeure, in the ÖBB case.
Force majeure in the aviation and rail sectors
The Sturgeon case law and subsequent jurisprudence may be taken into consideration by the rail sector to compare how the exemptions from liability in case of force majeure are treated in the aviation sector.
In the aviation sector, the ECJ has confirmed that an air carrier shall be excused from the obligation to pay compensation if it can show that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
The comparison with the aviation sector is extremely interesting also because the case law of the ECJ in this sector is quite advanced as to the definition of what may be considered as an “extraordinary circumstance”.
On the basis of the case law of the Court, it will be difficult for an air carrier to successfully invoke the “extraordinary circumstances” defence where delays are caused by technical problems.
On the other hand, delays caused by severe weather conditions, ATC and airport problems should always exempt the air carrier from liability.
Final Remarks
The approach of the ECJ to cases involving passengers swings between two opposites: on the one hand, in the aviation sector, the ECJ goes beyond the rule of law and “amended” Regulation 261/2004 by adding new liabilities that were not included in the text of the Regulation; on the other hand, in the rail sector, the Court refuses to apply a general principle of law codified under the COTIF/CIV system on the basis that the PRR does not explicitly refer to force majeure as an exemption from liability.
According to the well-established principle of legal certainty, individuals should be able to ascertain unequivocally what their rights and obligations are and to take steps accordingly.
However, these conflicting interpretations and approaches of the Court make it extremely difficult to foresee how a regulation for the protection of passengers will be interpreted and, as a consequence, create an unnecessary and detrimental uncertainty.
The case
The case was brought to the attention of the Court under a preliminary reference from the Austrian courts. Austria's national supervisory authority had indeed summoned ÖBB-Personenverkehr AG, the national Austrian rail operator, to change its general conditions of carriage which provided, inter alia, that the passengers would not be entitled to compensation or reimbursement of costs incurred where the cause of the delay could be attributed to a list of force majeure events.
The Austrian supervisory authority decided that this clause of the general conditions of carriage of the operator was in breach of Community law and, in particular, Article 17 of Regulation 1371/2007 on rail passengers' rights and obligations (PRR).
ÖBB took an action against the decision of the Austrian supervisory authority and the competent national court decided to stay proceedings and to refer the case to the ECJ.
The decision of the ECJ
In its decision, the ECJ follows the opinion delivered by Advocate General Niilo Jääskinen and states that rail operators cannot be exonerated from their liability to pay compensation for delays even when such delays have been caused by events of force majeure such as severe weather conditions.
This means that, even in cases of force majeure, the rail operator shall be obliged to pay compensation to the passengers in the amounts stated in Article 17 PRR.
The decision of the Court revolves around two fundamental concepts: a strict interpretation of the text of Article 17 and the refusal to compare different modes of transport.
The Court indicated that, as Article 17 PRR does not contain an exemption from liability in case of force majeure, such an exemption cannot be granted.
The Court followed the reasoning of the Advocate General and refused to consider that the grounds for excluding liability specified in Article 32, paragraph 2 CIV (force majeure, fault of the victim or of a third party) apply to Article 17 PRR. And this even if the recitals of the PRR clearly states that "it is desirable that this Regulation create a system of compensation for passengers in the case of delay which is linked to the liability of the railway undertaking, on the same basis as the international system provided by the COTIF and in particular appendix CIV thereto relating to passengers' rights".
Indeed, the ECJ indicates that a broad interpretation of Article 17 would go against the intentions of the legislator who decided not to explicitly include force majeure as an exemption from liability of the train operator.
The Court also refused to compare the force majeure exemptions granted to other modes of transport with the exemptions (or absence thereof) granted to rail operators.
The very flexible interpretation of the rule of law by the ECJ
The approach adopted by the ECJ in the ÖBB case is irreconcilable with the approach adopted in the aviation sector and, in particular in the Sturgeon case law and subsequent jurisprudence.
The Sturgeon case law concerns the interpretation of Regulation 261/2004 on air passengers' rights. In the Sturgeon judgement, the ECJ ruled that, even if Regulation 261/2004 did not explicitly give any right to compensation to passengers whose flights were delayed, the Regulation should be broadly interpreted so that compensation would be payable.
The Sturgeon decision has been heavily criticised as it has been considered that the ECJ has abandoned the rule of law by creating a new type of compensation that was not provided for by the legislator. This broad "interpretation" has been followed, according to the Court, in the name of the principle of "equal treatment" between passengers whose flights had been cancelled and those whose flights had been delayed.
It would be interesting to know what justified the ECJ to abandon the rule of law and start making the law in the Sturgeon case and what, on the other hand, did not allow the Court to apply a general principle of European contract law that clearly inspired the PRR, such as the exemption from liability in case of force majeure, in the ÖBB case.
Force majeure in the aviation and rail sectors
The Sturgeon case law and subsequent jurisprudence may be taken into consideration by the rail sector to compare how the exemptions from liability in case of force majeure are treated in the aviation sector.
In the aviation sector, the ECJ has confirmed that an air carrier shall be excused from the obligation to pay compensation if it can show that the delay was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.
The comparison with the aviation sector is extremely interesting also because the case law of the ECJ in this sector is quite advanced as to the definition of what may be considered as an "extraordinary circumstance".
On the basis of the case law of the Court, it will be difficult for an air carrier to successfully invoke the "extraordinary circumstances" defence where delays are caused by technical problems.
On the other hand, delays caused by severe weather conditions, ATC and airport problems should always exempt the air carrier from liability.
Final Remarks
The approach of the ECJ to cases involving passengers swings between two opposites: on the one hand, in the aviation sector, the ECJ goes beyond the rule of law and "amended" Regulation 261/2004 by adding new liabilities that were not included in the text of the Regulation; on the other hand, in the rail sector, the Court refuses to apply a general principle of law codified under the COTIF/CIV system on the basis that the PRR does not explicitly refer to force majeure as an exemption from liability.
According to the well-established principle of legal certainty, individuals should be able to ascertain unequivocally what their rights and obligations are and to take steps accordingly.
However, these conflicting interpretations and approaches of the Court make it extremely difficult to foresee how a regulation for the protection of passengers will be interpreted and, as a consequence, create an unnecessary and detrimental uncertainty.
