EU Passengers’ Rights and Persons with Disabilities – An Assessment
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List of contents
The European Disability Forum (EDF) 3
Introduction 3
Air: Regulations 1107/2006 and 261/2004 4
Rail: Regulation 1371/2007 8
Maritime and Inland Waterways: Regulation 1177/2010 10
Road: Regulation 181/2011 10
Assessment: Where are we now and what can still be done? 12
Conclusion 16
Acknowledgments 17
ANNEX: Case studies and examples 17
The European Disability Forum (EDF)
EDF is the European umbrella organisation representing the interests of 80 million persons with disabilities in Europe. It is EDF’s mission to ensure that persons with disabilities have full access to fundamental and human rights through their active involvement in policy development and implementation in Europe. EDF is a member of the International Disability Alliance and works closely with the European institutions, the Council of Europe and the United Nations.
Introduction
Since 2011, EU Regulations on passengers’ rights exist in all transport modes – air, rail, road and waterborne transport. All Regulations have specific provisions for persons with disabilities or reduced mobility and there is even one dedicated Regulation on air travel (Regulation 1107/2006) that covers this topic in detail. But has this changed anything concerning the travel experience of persons with disabilities? EDF regularly receives feedback from member and other travellers with disabilities that complain about the things that are going wrong and instances where their rights as passengers have not been respected. Or instances where the Regulation simply did not cover their specific problem and they were left without legal protection.
While this is rather anecdotal evidence and EDF does not have comprehensive data on those cases, it does nevertheless shine a light on the problems that persist. It is for example interesting to note that most of the complaints or statements that reach EDF are about air travel, even though this is the transport mode which is covered most extensively by the EU Regulations from the perspective of persons with disabilities and reduced mobility. One possible explanation is that air travel is for many people more stressful to deal with because it is a more exceptional situation that an individual has less control over and thus creates more insecurity. This stems also from those situations of passengers with disabilities and reduced mobility who have been simply rejected or forced to get off the flight just before departure on alleged “safety reasons”, especially by low-cost airlines.
Whatever the causes, we can see that the EU Regulations are on the one hand appreciated by the passengers but on the other hand equally ignored by many transport operators and this leads to grievances. Be it the lack of information about their rights in the first place, the ignorance of staff, the non-transparent and inaccessible complaint procedures of the operators or systematic infringement of the legislation by the Member States – the passengers are the ones that are at the receiving end and experience the problems first hand.
This is why EDF has decided to have a look at what happens AFTER a Regulation has been published and entered into force: does it actually change the travelling experience of persons with disabilities? What are the remaining issues and how can the implementation of the legislation be improved? We will analyse every Regulation separately and give a short overview of the current situation. We will also take a quick look ahead to prepare for the next steps. In the Annex EDF has also compiled some examples of complaints by passengers with disabilities or reduced mobility to illustrate some of the most common problems.
Air: Regulations 1107/2006 and 261/2004
As mentioned above, air travel is the only transport mode that has a separate piece of legislation dedicated to the rights of persons with disabilities and reduced mobility. Regulation 1107/2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air[1] mainly covers the provision of assistance at airports as well as the non-discrimination principle. It entered into force in 2008.
One of the most important provisions that this Regulation introduced is the right to access to air travel without discrimination: An airline shall not refuse, on the ground of reduced mobility or disability, to accept the reservation of a person or to embark a person (Article 3). The idea is that persons with disabilities shall have the same possibilities to travel by air as any other person (Article 1 (a)). This includes being provided with un uninterrupted assistance that is adapted to individual needs – from the designated point at the airport of departure, with the means of transport you have chosen to arrive, to the airport of arrival (Article 7). The assistance should be provided at no additional charge (Article 8) by a person who has undergone disability awareness and disability equality training (Article 11).
Although the Regulation has been a big step forward, there are also several shortcomings that have emerged over the years since its entry into force. The most serious problem is a loophole within the legislation. EDF was already aware of this potentially problematic provision at the point of drafting but the advocacy efforts were not successful. The regulation actually opens up a possibility for air carriers to deny boarding of disabled people for “safety reasons” established by international, European or national law. This has led to passengers being denied boarding (for example in the Easy Jet cases in France: Paris Appeal Court of Justice: 13/01/12 and 11/02/14 both confirming the first sentence against the company). Unfortunately sometimes air carriers also claim that a disabled person is a safety risk just because they lack knowledge about what disability really is.
Although the Regulation states in its Article 12 that a passenger shall be entitled to compensation if his or her mobility equipment or assistive devices are damaged, it does not clarify whether this means unlimited (full) compensation or not. Instead it only states that compensation shall be provided in accordance with international, EU or national legislation. The relevant international legislation that exists today is the Montreal Convention, where a maximum amount of compensation for damaged “luggage” is set. This amount is restricted to 1000 special drawing rights (about 1400 EUR ), which is far from sufficient, as mobility equipment and assistive devices can cost far more than that to repair or replace. To explain the issues with the mobility equipment in more detail, it is useful to also look at the general Regulation on Air Passengers Rights 261/2004, which is in the process of being revised.
Regulation 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights[2] is more general and is relevant to all passengers as it concerns cases of delay and cancellation. It is probably the most well-known of the different passengers’ rights Regulations as it creates the right to receive compensation if a flight is delayed or cancelled by the airline. It was also the first of the passengers’ rights Regulations so it was also the first one to be revised.
In 2013, the European Commission issued a proposal for the revision of Regulation 261/2004 together with Regulation 2027/97 on air carrier liability[3] to strengthen certain shortcomings of the original Regulations. It was supposed to clarify grey areas such as the definition of “extraordinary circumstances” and to give new rights amongst others in cases of misspelt names and re-scheduling. EDF welcomed the revision of the legislation since EDF had already long before campaigned to remove the liability limit of airlines for damaged or lost mobility equipment which falls under Regulation 2027/97, and this revision did also tackle the rules for liability of air carriers for baggage, including mobility equipment which are currently established by the Montreal Convention.
EDF’s position paper[4] following the Commission proposal tackled several important aspects including the one mentioned above that EDF was in favour of. Other issues concerned the definition of “persons with reduced mobility” (Article 1(1)a), contingency plans in cases of multiple cancellations (Article 5(f)), assistance in cases of long delays (Article 6(2)), the derogation from limitations to assistance for persons with disabilities and reduced mobility (Article 11), the obligation to inform passengers (Article 14) and the rules for passengers complaints and claims (Article 16 a).
Following the Commission proposal, the Committee on Transport and Tourism (TRAN) of the European Parliament issued a mainly favorable report which was subject to vote in the plenary on 5 February 2014. EDF succeeded in including some important provisions in the final text and a new provision was introduced which underlines that an airline may not deny boarding to a person with disability travelling alone and that the airline may not insist on an accompanying person (Article 11 (3) b new).
While there were many positive changes adopted during the plenary, some amendments were unfortunately less favourable for persons with disabilities and contradicted some of EDF’s proposed amendments. One of the most important points for us was that airlines should be fully liable for damage to or loss of mobility equipment such as wheelchairs if its value is declared by the passenger at the time of check-in. EDF supported the Commission proposal that this declaration should, of course, be free of charge but this provision was finally removed by the Council.
After the Parliament report the file went to the Council and work should have been taken up early 2014. The issue was put on the agenda several times but no progress was made so far and the core questions were not even tackled yet. It seems like there is a political disagreement which prevents the proposal from being discussed in more detail but EDF hopes of course that work on the file will be taken up again under the Latvian and Luxembourgish presidencies next year.
Rail: Regulation 1371/2007
Since EDF already published a more detailed paper on rail accessibility[5] earlier this year we would mainly like to refer to this paper in order to avoid repetition. However, to summarize the main points concerning Regulation 1371/2007, a short overview is nevertheless useful.
As all other transport modes except air transport the Rail Regulation applies to all passengers but has one specific section dealing with passengers with disabilities (Chapter V). Similar to Regulation 1107/2006 it establishes rules for the provision of assistance at stations, transport of and liability for mobility equipment as well as the passengers’ rights in case of delay or cancellation. The European Commission published a report on the implementation of Regulation 1371/2007 in 2013 and stated that there were in general no major problems. However, the Commission did note some issues with the National Enforcement Bodies on national level and there is still a large number of domestic, regional, urban and suburban rail services that are exempt from the Regulation in a number of Member States (as regards persons with disabilities, it has to be noted that only Article 20 (1) on information applies without exemption).
According to EDF, there are however still a few aspects that need clarification or strengthening to make rail travel for persons with disabilities easier. The Commission is planning on publishing a set of Guidelines later in 2014, similar to the Guidelines on Regulation 1107/2006, which will then lead to a revision of the Regulation in the medium term. Some of the points that EDF would like to address in the future guidelines and for the next revision, amongst others, are:
- To eliminate the minimum pre-notification period, currently set at 48 hours prior to departure, in order to receive assistance at the train station.
- To extend the right to receive assistance during the entire time services are operating from a given station without limitation to certain working hours (e.g. 09:00 – 17:00).
- To clarify the responsibility regarding the provision of assistance especially for multi-modal journeys (e.g. the transition from bus to rail) and for unstaffed stations[6]
- To ensure accessibility of timetable information and information regarding engineering works and other traffic incidents.
EDF will of course keep following this process and give input to the Commission’s work to make sure that accessibility for persons with disabilities is improved further and to ensure compliance with the provisions of the UN CRPD. In addition, EDF wants to make sure that persons with disabilities are better informed about their rights and encourages them to lodge complaints in cases of non-compliance with the Regulation.
Maritime and Inland Waterways: Regulation 1177/2010
The Regulation which entered into force in December 2012 has a similar scope to the Regulation on Rail Passengers’ Rights (1371/2007). It covers both the right to transport for persons with disabilities as well as right to accessible information, right to assistance, rights in cases of delay or cancellation and rights related to mobility equipment and assistive devices.
Before the drafting of this Regulation, EDF collected information about problems in the field of maritime travel and received several complaints by passengers with disabilities. Those complaints covered many aspects of the journey and included cases of passengers being denied boarding because of their disabilities, inaccessible vessels or boarding procedures as well as lack of assistance. Since the entry into force of the Regulation, EDF has not received any feedback to judge whether the situation has improved with the introduction of the legislation.
The Commission is obliged to publish an interim report on the implementation of the Regulation by December 2015 and EDF expects a public consultation in preparation of the report. This also means that there will probably be more information and statistics available about this field of transport soon. EDF still encourages persons with disabilities to send us relevant information and case studies to illustrate persisting problems.
Road: Regulation 181/2011
The last Regulation so far to enter into force was Regulation 181/2011 concerning the rights of passengers in bus and coach transport[7] in March 2013. As the “youngest” of the five pieces of legislation on passengers’ rights it has nevertheless already been subject to several infringement cases[8] against Member States (amongst others Italy and Denmark), launched by the European Commission for not respecting the provisions set out in the Regulation. There are several challenges with this Regulation and the differences between Member States are also striking: some had difficulties just to appoint one single coach terminal in the whole country that provides assistance to persons with disabilities and the level of accessibility of the coach fleet varies a lot, too. EDF sent a letter to Commissioner Kallas on 14 May 2014 to give the example of Spain which has not implemented many of the measures set out in the Regulation such as the assistance free of charge.