The Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations provides that the liability of railway undertakings in the case of delay is governed by the Uniform Rules concerning the Contract for International Carriage of Passengers and Luggage by Rail, subject to the applicable provisions of the regulation.In accordance with the Uniform Rules, which are part of international law and are reproduced in the annex to the regulation, the railway carrier is liable to the passenger for the loss or damage resulting from the fact that, by reason of the late running of a train, his journey cannot be continued or continuation of the journey could not reasonably be required the same day. However, the carrier is exempt from liability where the delay is attributable to force majeure, namely, inter alia, circumstances not connected with the operation of the railway which the carrier could not avoid.The regulation provides that a passenger facing a delay of an hour or more may request a partial reimbursement of the price paid for the ticket from the railway undertaking. The amount of that compensation is at least 25% of that price in the event of a delay of between 60 and 119 minutes and 50% in the event of a delay of 120 minutes or more. The regulation provides for no exception to that right to compensation where the delay is attributable to force majeure.Against that background, the Austrian “Verwaltungsgerichtshof” (Administrative Court, Austria) has asked the Court of Justice whether a railway undertaking may be discharged from its obligation to pay compensation where the delay is attributable to force majeure. In its judgment of Sep. 26, 2013, the Court found, first, that the regulation itself does not exempt railway undertakings from the obligation to pay compensation where the delay is attributable to force majeure. The Court then noted that the Uniform Rules on the one hand and the regulation on the other hand, have different purposes and therefore the carrier’s grounds of exemption from liability under the Uniform Rules are not applicable in the context of the liability system established by the regulation.The Court also rejected the argument that the rules relating to force majeure set out in the provisions on the rights of passengers travelling by other modes of transport were applicable by analogy: the situation of undertakings operating in different transport sectors was not comparable.As a result therefore, a railway undertaking may not include in its general terms and conditions of carriage a clause under which it is exempt from its obligation to pay compensation in the event of a delay where the delay is attributable to force majeure.Source: ECJ press release 119/13 of Sep. 29, 2013Full text of ECJ judgement in case C-C-509/11- ÖBB-Personenverkehr AG available here>>.
