Commission Staff Working Paper

- Rights of Passengers in international bus and coach transport -

Answers and comment

Question 1

The German Association of Judges does agree that there should be rules for the protection of passengers equal to those concerning other ways of transport/travel, especially with regard to liability in case of death or injury of passengers or cancellation, but as well with regard to insurance of coach operators.

Question 2

Such rules for the protection of passengers could be well addressed by the European Union. It appears to be equally useful if such a regulation would be the subject of an international agreement. As such an agreement is not to be expected in short time an EU directive or regulation seems to be the most suitable instrument.

It is not possible for the German Association of Judges to give an assessment of which would be the most cost-effective means.

Question 3

Regarding the rules established in Art. 95 Abs. 3 Contract of the European Union it would be legally possible to regulate not only the rights of passengers in international services but as well those of domestic services. There is stated that with view to the consumer protection rules the legislative acquis of the member states should offer a certain level of protection which is set by the EU.

This is also advisable in view of the quite vital interests of the passengers that are touched, especially protection in cases of death and injury. Insofar there should be an equal level of protection in all member states.

Question 4

The German Association of Judges is not able to give an assessment to this question.

Question 5

In Germany the existing mandatory insurance schemes are in most aspects sufficiently adapted to the needs of international transport of passengers by bus or coach as they do not really differ from those for domestic transport. There are provisions for sufficiently high damages to be paid in cases of injury/death or loss of luggage. Besides, German jurisdiction has established a right to advance payments if these are needed in the special case. Any couch tours offered by German couch operators to German travellers are covered by this law.

There are no legislative rules on how help has to be offered in case of death or injury. Until now the help appears to have been sufficient anyway. Yet it might be good to have a legal right for the passengers to get help.

An assessment of insurance provisions in other member states is not possible; it seems that the Austrian legislation is quite similar to the German concerning insurance of coach operators.

Question 6

Basically it appears sensible to have a liability system similar to that of other means of transport.  It makes the application of the rules easier to the passengers who have to deal with the same system of regulation concerning all kinds of travelling means, i.e. also the same time limits, the same system of claims etc. It appears also easier for the coach operators or travel agents in case they offer other modes of transport besides coach transport. They could then use the same contract conditions all over which might safe cost. It would also be easier for those who have to use law, i.e. lawyers, judges. In cases where different modes of travel are subject of the same contract the decision which rules have to be applied would be much easier.

Question 7

This is a political question which has to be answered differently in the different member states with regard to the economical standards. The German Association of Judges does not feel able to give a valid assessment to this question.

Besides, if a case of death or injury of a passenger could not be evaded by the coach operator under any circumstances, having applied all necessary care (cases of nature catastrophes such as an earthquake) there should not be any liability of the coach operator. He/she shall not bare the general risk of life.

In cases of other reasons of death of passengers the amount of damages should in all cases cover the transport home of the body and of the funeral as well as the cost for at least one or two family members of the dead person to come to the place where the person died and take care of any measures that have to be taken there. That would include travel cost as well as accommodation. Any claim on damages for lost income etc. should depend on negligence of the coach operator as cause of the death of the passenger.

Question 8

The advance payment should cover the expenses of the travel of family members of the passenger to the place of the accident/death of the passenger, possibly also those of bringing the body back.

Question 9

There should be no upper limit of liability. It is a common rule in transport law that upper limits only apply to cases of usual negligence but must not be applied in cases of gross negligence or intent. This has proven sensible and leads to good results.

Question 10

The decision which law shall be applicable should be taken on the basis of the general rules of international private law. There appears to be no need to have special rules for cases of bus transport. The general rules offer working and just solutions. In those cases where both parties of the travel contract come from the same state the law of that state will be applicable. Otherwise it has to be decides where the characteristic part of the contract is placed. This will mostly be the place where it is started, because here the essential aspects of the carrying out will be decided (choice of coach, boarding of passengers and loading of luggage, choice of driver etc.). Usually, this should be identical with the state where the ticket was bought.

The passenger should always be entitled to file a lawsuit in his home country. 

Question 11

There should not be a minimum level of compensation as this might be unjust. It is suggested to have a change in the burden of proof. Insofar as a passenger claims damages for such items of luggage as are usual for travels like the one he/she had booked the coach operator ought to have the burden of proof that the passenger did not carry such luggage. This change of the burden of proof should not apply to all valuables as jewellery, electronic equipment etc.

Question 12

There should be obligations to help in acquiring substitute mobility equipment as quickly as possible. The question if the coach operator should in the end be liable for the cost should depend on the general rules.

Question 13

There are no special legal rules concerning the liability of coach operators. The liability depends on the kind of contract, if it covers only the transport or if it is a travel contract. In the latter case there is an enlarged liability for the quality of other services offered during the travel.

The liability for coaches is regulated similar to the liability to cars. There is a legal obligation to have a motor car insurance for any motor vehicle used in public traffic, § 3 Pflichtversicherungsgesetz. There are rules how such kind of insurance shall work in §§ 158 c ff Versicherungsvertragsgesetz. This kind of insurance covers all kinds of damages, may it be death or injury of the passenger as well as damages to luggage. It gives the passenger a direct claim against the insurance company to make it easier for him. The claim against the coach operator is valid beside the claim against the insurance company. There are legal minima of insurance for cases of death and injury as well as for damage of luggage. They were last put higher in 2004 and seem to be just now to be sufficient for nearly most kinds of injuries and damages.

Question 14

Passengers should have a claim to receive compensation in case of denied boarding or cancellation of a journey if the contract did not include such a possibility.

Many bus journeys are made dependent of a certain number of participants. If this s a term of the contract and if the passenger is informed at least several days before the planned departure that the journey will not be executed there should be no compensation.

In cases of denied boarding or cancellation without having the possibility included in the contract and the failure announced in time there should be compensation.

Question 15

Passengers should in any case be provided with appropriate accommodation, meals etc. in case of interruptions of the journey. This claim should not depend on negligence of the coach operator but be valid in any case. The passengers are often not able to care for these aspects themselves, especially in case of international journeys. The cost of this may be covered by insurance.

Question 16

A claim to compensation in case of delay should depend on the reasons of the delay. It seems to be best to apply the general rules of liability.

Coaches are like individual motor cars subject to causes of delay from traffic disturbances or traffic accidents which can not necessarily been known in advance. The passenger who chooses travelling by coach knows this and accepts it as part of the contract.

Compensation for delay should be paid in cases the delay was either caused by negligence or even intent of the coach operator or in cases where the coach operator knew of causes for delay in advance but did not tell them to the clients.

Question 17

If there is a claim for compensation for delay it should cover the cost of the ticket or at least part of it if the delay affects only part of a journey (it might affect only some days of a longer journey).

Question 18

Like said with respect of question 16 the general rules should be applied. They offer sensible and working solutions when there should be no liability of the coach operator. That means for example there is no compensation of delays if they are caused by the general course of traffic; there is no compensation of delays if they are in advance included in the contract.

It will not be sufficient to announce possible delays when starting the journey if the coach operator knew the reasons for possible delays earlier. A passenger who wants to arrive at a certain time cannot take care of other provisions if he/she is only told at the beginning of the journey.

Question 19 - 21

The German Association of Judges is not able to assess if it would be possible to provide the transport of persons on reduced mobility by coach. Considering the usual build of coaches this appears not easily possible. There is not enough space. The entrances are narrow and do not allow to use ramps, as is the case in rail coaches or urban buses.

Question 22

In Germany urban buses as part of public transport for short distances are legally required to offer transport to persons of reduced mobility.

This is realized in practice mostly by the use of such buses which are technically adapted to easier ascent. When stopped they lower themselves down at the side of the pavement so there is only a very short distance to be mounted when boarding a bus. The buses offer space for wheelchairs and some seats are reserved for disabled persons. The drivers are legally obliged to help with the ascent and descent. 

Question 23

In Germany there exists a legal obligation for the drivers of urban buses to help people with perambulators with the ascent to and descent from the bus. There are free spaces where a perambulator can be placed. This appears to be sufficient. Insofar one might say that a certain equal treatment should be provided.

Question 24

If it should be possible for persons of reduced mobility to travel by coach the need of help ought to be announced at least some day in advance. The coach operator must know this in time to provide a fitting coach and the technical equipment for help. As most coach operators offer journeys on the basis of a fixed time table they must know special requirements early to plan the distribution and employment of coaches, gear and drivers in time.

Question 25 - 26

It appears sensible that there should be facilities at coach terminals usable for persons with reduced mobility, i.e. rooms to be reaches without stairs, wide enough entrances, special toilets etc., if needed, special elevators.

Furthermore there must be no raised platforms; it ought to be possible to use the whole area of a coach terminal without stepping up and down. Waiting areas/platforms can be marked with colour. Even if this might cause problems for blind passengers these can be solved.

Question 27

Organisations representing persons with reduced mobility should be involved in the planning of facilities and the planning of legislation.

Coach operators should not obliged to include consultations of such organisations in there usual activities.

Question 28 - 29

 There should be quality standards, which includes as well reliability. If these should be established through legislation or voluntarily by the coach operators themselves cannot be solved by the German Judges Association. In any cases the upset of the rules should not take too long.

The compliance with legal rules ought to be controlled by the public authorities. In case of internally set up standards there might be controlling committee or a similar institution.

Question 30

The aspects listed in this question ought to be included in a quality standard. Furthermore there should be included the aspect of early and correct information of the passengers. May be the quality of the personnel (drivers, possibly guides) should be included.

Question 31

The ticket shall at least show the date and time of travel, the coach terminal where the coach will leave, the duration of validity of the ticket. It shall furthermore give the name of the coach operator which whom the contract was closes and, if different, the name of the coach operator which is eventually carrying out the journey. If a certain time of arrival is required from the passengers this should also be said on the ticket.

Question 32

Standard conditions of carriage are a part of the contract. They must not necessarily be attached to the ticket, but it would be helpful for the passengers if some major terms would be included there. It might also be a solution to have them on each coach to be looked up if need should be.

Question 33

The standard conditions of contract have to be available on the basis of the general rules concerning standard contract terms. This demands either a hand-out in written form at latest when the contract is concluded or an equal possibility for the passenger to inform him-/herself of the contents. This can be done by laying the standard conditions out for view in the ticket office.

Experience has shown that the offer of the standard terms of contract in the shop or the ticket office makes it more difficult for the consumer to read them carefully. May be there should be the – general – obligation to hand out the standard terms on paper, even if they are laid out for view in the ticket office. Both means of information have to be combined as the passenger must have the possibility to look at the standard terms before he/she buys a ticket, too.

Question 34

The German Association of Judges cannot answer this question profoundly. It should be put to representatives of disabled persons.

Question 35

It seems to be sufficient that the coach operator is disclosed with reasonable notice before the start of the travel. The passengers might be protected for example by contract terms saying that e certain standard of coach operator has to be kept.

Question 36 - 37

There is not really a special need of EU regulation for complaint handling for this special field of business. The passengers can file complaints and, if needed, law suits to enforce their claims.

Nevertheless it might be helpful to have a kind of committee working on the solving of complaints. This structure has shown good results in other fields, i.e. medical cases or building contracts. The committee should be set up by representatives from both sides involved, i.e. organisations of consumers as well as those of coach operators / travel agencies.

A very good solution would be if one could find independent chairmen for those committees, which could work with one representative from each side. The committee and its results would thus be acceptable to both parties. The committee should have the right to hear experts on certain questions or ask witnesses for a report. There must be a chance to file a lawsuit in case the decision of the committee is not accepted.

This committee might then treat all complaints of one passenger, so that he/she must not contact a lot of places. This would be very helpful for the passenger.

 Question 38

It is not clear what is meant with this question. Does it refer to the handling of a complaint by the coach operator, or shall the proposed time frame be valid for the whole process of handling a complaint?

If the process of handling a complaint shall be covered completely the proposed time of four weeks is much too short. If there are facts to be cleared concerning a case that has happened in another country it will be impossible to do that in only four weeks.

If the handling by the coach operator is meant four weeks might be sufficient for an average case of complaint. Should there be a major accident in a strange country this time frame is again too short. Often the extent of damages is not clear during this time limit so that a final solution would be mostly insufficient for the passenger.

It might be possible to have a time frame of four weeks for a first reaction. Insofar it should always been taken into consideration that the claimant can always set time limits himself if he has the impression his claim is treated too slowly. A legal time frame for treating any cases is not a practical solution because the wide range of different cases cannot be sufficiently respected.

Question 39

If there is a time limit of four weeks for a first reaction of the coach operator to a claim and there is no reply during this time frame this should not automatically lead to deeming the claim accepted. This might in a special way give disadvantages to small coach operators who might be a victim of an accident or other disturbance themselves. Nevertheless the overstepping of the time limit should lead to a change in the burden of proof. Another possible resolution might be that the claim is deemed accepted if not the coach operator can present and prove facts which show that he was not able to react in time.

Question 40

Information on this aspect of performance of a coach operator will be valuable to a passenger for his decision to use a certain coach operator. Therefore it should be made public.

In this context it would be important that not only the number of complaints will be published but as well the number of successful complaints. Otherwise the publication would be open to manipulation.

Question 41

See questions 36 – 37.

Question 42

No.

Question 43

For bus travel there is no special practice in Germany concerning voluntary complaint handling.

Question 44

Also the procedures offered in these Commission recommendations would work well. They seem to be sufficient.

Question 45

See question 36 – 37.

Question 46

The German Association of Judges has no special experiences with self-regulation of user/costumer care rights. Judging from the media it is an important field and comes at least partly to good results.

Questions 47 – 49

The German Association of Judges cannot give a proper assessment to those questions.

signed by Brigitte Kamphausen, Vice Chairwoman of the German Association of Judges