OPINION OF ADVOCATE GENERAL
delivered on 14 March 2013 (1)
(Request for a preliminary ruling from the Verwaltungsgerichtshof (Austria))
(Regulation (EC) No 1371/2007 on rail passengers rights and obligations – Article 17 – Conditions for ticket price compensation in case of delay, missed connections and cancellations – Compensation precluded for delays caused by force majeure – Article 30 – Powers of a national body charged with enforcement of Regulation No 1371/2007 – Whether Article 30 of Regulation No 1371/2007 authorises the national body to order railway undertakings to alter compensation terms that do not comply with Regulation No 1371/2007 – Legal effects of European Union regulations – Principle of effet utile – Meaning of ‘court or tribunal’ under Article 267 TFEU – General principles of EU law – Duties and powers of Member State administrative authorities to issue remedies when compared with Member State courts and tribunals.)
I – Introduction
1. Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (2) (‘Regulation No 1371/2007’) provides, inter alia, unified rules concerning liability of railway undertakings in cases of delays, missed connections and cancellations. Concretely, this case concerns a claim of a railway undertaking which submits that it is excused from compensating ticket price when a delay, missed connection or cancellation is caused by force majeure.
2. Article 17 of Regulation No 1371/2007, which is the central provision in the regulation concerning ticket price compensation, makes no reference to force majeure. The Verwaltungsgerichtshof (Administrative Court, Austria) queries, however, whether a restriction on the circumstances in which ticket price compensation can be claimed by passengers can be inferred in another way. The Verwaltungsgerichtshof notes that circumstances beyond the control of transport undertakings limit their liability to pay compensation under (i) Article 32(2) of the Uniform Rules concerning the contract for international carriage of passengers and luggage by rail (‘CIV’) and (ii) under provisions in three other regulations on passenger rights within other transport sectors, and which might be applicable by analogy, namely Article 5(3) of Regulation (EC) No 261/2004, (3) Article 20(4) of Regulation (EU) No 1177/2010, (4) and Article 23(2) of Regulation (EU) No 181/2011. (5)
3. If the force majeure excuse is rejected, the dispute will become pertinent to a more complex question, and one which has relevance to the broader context of European Union (‘EU’) administrative law; namely, the competence of Member State administrative authorities to issue orders to secure a regulation’s effective enforcement.
4. The powers of the national agency designated to apply Regulation No 1371/2007 fall for consideration because, under the relevant provisions of Austrian law, the agency may only declare compensation terms included in the tariff of a railway undertaking null and void in the event that they are incompatible with Regulation No 1371/2007. The agency has no authority to do more, such as issue an order requiring the railway undertaking to modify its contracts to ensure that ticket price compensation is paid in conformity with Article 17 of Regulation No 1371/2007. The Verwaltungsgerichtshof wonders, however, whether this competence could be derived from Article 30 of Regulation No 1371/2007, which addresses enforcement. This question therefore necessarily entails consideration of the general principles of law elaborated by the Court of Justice concerning effet utile, national remedies, and the types of Member State bodies that are bound by them.
5. Finally, it is necessary to make some complementary observations on the obligation of the railway undertaking under Regulation No 1371/2007 and the position of the referring national administrative court with respect to the principle of effective judicial protection under EU law.
II – Legal framework
A – Union law
6. Recitals 6, 13 and 14 of Regulation No 1371/2007 state as follows:
‘(6) Strengthening of the rights of rail passengers should build on the existing system of international law on this subject contained in Appendix A — Uniform rules concerning the Contract for International Carriage of Passengers and Luggage by Rail (CIV) to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as modified by the Protocol for the modification of the Convention concerning International Carriage by Rail of 3 June 1999 (1999 Protocol). However, it is desirable to extend the scope of this Regulation and protect not only international passengers but domestic passengers too.
(13) Strengthened rights of compensation and assistance in the event of delay, missed connection or cancellation of a service should lead to greater incentives for the rail passenger market, to the benefit of passengers.
(14) 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.’
7. Article 6(1) and (2) of Regulation No 1371/2007 provide:
‘Exclusion of waiver and stipulation of limits
1. Obligations towards passengers pursuant to this Regulation may not be limited or waived, notably by a derogation or restrictive clause in the transport contract.
2. Railway undertakings may offer contract conditions more favourable for the passenger than the conditions laid down in this Regulation.’
8. Article 15 of Regulation No 1371/2007 provides:
‘Liability for delays, missed connections and cancellations
Subject to the provisions of this Chapter, the liability of railway undertakings in respect of delays, missed connections and cancellations shall be governed by Chapter II of Title IV of Annex I.’
9. Article 17 of Regulation No 1371/2007 provides:
‘Compensation of the ticket price
1. Without losing the right of transport, a passenger may request compensation for delays from the railway undertaking if he or she is facing a delay between the places of departure and destination stated on the ticket for which the ticket has not been reimbursed in accordance with Article 16. The minimum compensations for delays shall be as follows:
(a) 25% of the ticket price for a delay of 60 to 119 minutes,
(b) 50% of the ticket price for a delay of 120 minutes or more.
Passengers who hold a travel pass or season ticket and who encounter recurrent delays or cancellations during its period of validity may request adequate compensation in accordance with the railway undertaking’s compensation arrangements. These arrangements shall state the criteria for determining delay and for the calculation of the compensation.
Compensation for delay shall be calculated in relation to the price which the passenger actually paid for the delayed service.
Where the transport contract is for a return journey, compensation for delay on either the outward or the return leg shall be calculated in relation to half of the price paid for the ticket. In the same way the price for a delayed service under any other form of transport contract allowing travelling several subsequent legs shall be calculated in proportion to the full price.
The calculation of the period of delay shall not take into account any delay that the railway undertaking can demonstrate as having occurred outside the territories in which the Treaty establishing the European Community is applied.
2. The compensation of the ticket price shall be paid within one month after the submission of the request for compensation. The compensation may be paid in vouchers and/or other services if the terms are flexible (in particular regarding the validity period and destination). The compensation shall be paid in money at the request of the passenger.
3. The compensation of the ticket price shall not be reduced by financial transaction costs such as fees, telephone costs or stamps. Railway undertakings may introduce a minimum threshold under which payments for compensation will not be paid. This threshold shall not exceed EUR 4.
4. The passenger shall not have any right to compensation if he is informed of a delay before he buys a ticket, or if a delay due to continuation on a different service or re‑routing remains below 60 minutes.’
10. Article 30 of Regulation No 1371/2007 provides:
1. Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation. Each body shall take the measures necessary to ensure that the rights of passengers are respected.
Each body shall be independent in its organisation, funding decisions, legal structure and decision‑making of any infrastructure manager, charging body, allocation body or railway undertaking.
Member States shall inform the Commission of the body or bodies designated in accordance with this paragraph and of its or their respective responsibilities.
2. Each passenger may complain to the appropriate body designated under paragraph 1, or to any other appropriate body designated by a Member State, about an alleged infringement of this Regulation.’
11. Article 32 of Regulation No 1371/2007 provides:
Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify those rules and measures to the Commission by 3 June 2010 and shall notify it without delay of any subsequent amendment affecting them.’
12. Annex 1 to the regulation includes an extract from the CIV laid down in Appendix A to the COTIF of 9 May 1980, as modified by the Protocol for the modification of the Convention Concerning International Carriage by Rail of 3 June 1999.
13. Article 32 CIV in Annex I to Regulation No 1371/2007 provides:
‘Liability in case of cancellation, late running of trains or missed connections
1. The carrier shall be liable to the passenger for loss or damage resulting from the fact that, by reason of cancellation, the late running of a train or a missed connection, his journey cannot be continued the same day, or that a continuation of the journey the same day could not reasonably be required because of given circumstances. The damages shall comprise the reasonable costs of accommodation as well as the reasonable costs occasioned by having to notify persons expecting the passenger.
2. The carrier shall be relieved of this liability, when the cancellation, late running or missed connection is attributable to one of the following causes:
(a) circumstances not connected with the operation of the railway which the carrier, in spite of having taken the care required in the particular circumstances of the case, could not avoid and the consequences of which he was unable to prevent;
(b) fault on the part of the passenger; or
(c) the behaviour of a third party which the carrier, in spite of having taken the care required in the particular circumstances of the case, could not avoid and the consequences of which he was unable to prevent; another undertaking using the same railway infrastructure shall not be considered as a third party; the right of recourse shall not be affected.
3. National law shall determine whether and to what extent the carrier must pay damages for harm other than that provided for in paragraph 1. This provision shall be without prejudice to Article 44.’
B – National law
14. To the extent relevant for the present case, Paragraphs 22a, 78(a)(2) and (3), 78b(2) and 167(1) of the 1957 Eisenbahngesetz (Law on the railways; ‘EisbG’), inserted by Bundesgesetz (Federal law) BGB1. I No 25/2010, are worded as follows:
Paragraph 22a(1) Tariffs for the provision of rail services on main routes and connected ancillary routes shall include compensation terms in accordance with the provisions on compensation of the ticket price established in Article 2 of the Bundesgesetz zur Verordnung (EG) Nr. 1371/2007 über die Rechte und Pflichten der Fahrgäste im Eisenbahnverkehr (Federal law concerning Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations), BGBl. I No 25/2010, and Article 17 of Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations, OJ 2007 L 315, p. 14.
(2) Without prejudice to the jurisdiction of the ordinary courts or authorities, local or regional authorities, interest groups and customers may submit complaints to the Schienen‑Control GmbH pursuant to Paragraph 22a concerning alleged breaches of applicable provisions of Regulation (EC) No 1371/2007 and concerning rules in the conditions governing compensation that are alleged to be incorrect or that are unreasonable for passengers.
(3) In the case of complaints under both subparagraph (1) and subparagraph (2), the Schienen‑Control GmbH is required to seek an amicable resolution between the parties involved. Otherwise, it is required to inform the parties involved of its view and may make a non‑binding and non‑challengeable recommendation as to the resolution of the matter. The Schienen‑Control GmbH is required to set out in guidelines its method of procedure pursuant to subparagraphs (1) and (2) and to publish this on its internet site. Concerned undertakings are required to cooperate in this matter and, on request by the Schienen‑Control GmbH, to provide all information and documentation necessary for an appraisal of the facts relating to a complaint.
Compensation terms to be declared null and void
(2) Of its own motion, the Schienen‑Control Kommission (Rail Network Control Commission) shall:
2. declare null and void either in full or in part compensation terms adopted for the purposes of Regulation (EC) No 1371/2007 where the railway undertaking does not adopt such in accordance with the requirements of Article 17 of Regulation (EC) No 1371/2007.
Article 167 An administrative offence shall be deemed to have been committed and shall be sanctioned by the district administrative authority by a fine of up to EUR 2 180,
1. where a person does not publish compensation terms pursuant to Article 22a(1),
III – The dispute in the main proceedings and the questions referred for a preliminary ruling
15. ÖBB‑Personenverkehr AG, the applicant before the Verwaltungsgerichtshof, is a railway undertaking within the meaning of Article 3(1) of Regulation No 1371/2007.
16. ÖBB‑Personenverkehr AG imposes in its tariffs for the provision of railway services general terms and conditions of transport contracts which include provisions on compensation of the ticket price in the cases specified in Article 17 of Regulation No 1371/2007 (‘compensation terms’).
17. The Schienen‑Control Kommission, by a decision of 6 December 2010, ordered the amendment by ÖBB‑Personenverkehr AG of its ticket price compensation terms. More specifically, it obliged ÖBB‑Personenverkehr AG to delete the following provision, pursuant to which no compensation or reimbursement of costs as a result of delays in service is payable in the following cases:
– where there is fault on the part of the passenger,
– where a third party behaves in a manner which the carrier, in spite of having taken the care required in the particular circumstances of the case, could not avoid and the consequences of which he was unable to prevent,
– in the event of circumstances not connected with the operation of the railway arising which the carrier, in spite of having taken the care required in the particular circumstances of the case, could not avoid and the consequences of which he was unable to prevent,
– where services are restricted as a result of strikes, provided that passengers were adequately informed of these,
– if the delay results from transport services not included in the transport contract.
18. ÖBB‑Personenverkehr AG challenged the decision of the Schienen‑Control Kommission before the Verwaltungsgerichtshof. It argued, in essence, that the Schienen‑Control Kommission did not have the power, due to the limits imposed by Article 78b(2) EisbG, to order an amendment to its contractual terms. According to the order for reference, ÖBB‑Personenverkehr AG further claimed that the exclusion of compensation in cases of force majeure is permitted under Regulation No 1371/2007 and, moreover, that the right to invoke force majeure was recognised as a general principle of EU law.
19. In order to reach a decision, the Verwaltungsgerichtshof considered that it must first determine the ambit of the powers of the body established for the purposes of Article 30 of Regulation No 1371/2007 to enforce that regulation and, secondly clarify whether a railway undertaking may refuse to compensate ticket price within the meaning of Article 17 of Regulation No 1371/2007 in the case of force majeure.
20. In the light of the above, the following questions were referred to the Court for preliminary ruling under Article 267 TFEU.
‘(1) Is the first subparagraph of Article 30(1) of [Regulation No 1371/2007] to be interpreted as meaning that the national body designated responsible for the enforcement of that regulation may prescribe, with binding effect on a railway undertaking whose compensation terms do not conform to the criteria laid down in Article 17 of that regulation, the specific content of the compensation scheme to be used by that railway undertaking although national law permits that body only to declare such compensation terms null and void?
(2) Is Article 17 of [Regulation No 1371/2007] to be interpreted as meaning that a railway undertaking may exclude its obligation to pay compensation of the ticket price in cases of force majeure, either through application by analogy of the grounds for exclusion provided for in Regulations (EC) No 261/2004, (EU) No 1177/2010 and (EU) No 181/2011 or by taking into account the exclusions from liability provided for in Article 32(2) of the Uniform Rules concerning the contract for international carriage of passengers and luggage by rail (CIV, Annex I to the Regulation) also for cases of compensation for the ticket price?
21. Written observations have been received from ÖBB‑Personenverkehr AG, the Schienen‑Control‑Kommission, the German, Austrian and Swedish Governments, and from the Commission. The representatives of ÖBB‑Personenverkehr AG, the Schienen-Control-Kommission, and the German and Italian Govenrnments, along with the Commission, participated at the hearing of 22 November 2012.
22. I will start by answering Question 2, given that the answer to it will impact on Question 1, and that Question 2 is of wider interest to EU transport law and consumer protection. Question 2 addresses the force majeure issue in that it requires consideration of whether, on proper interpretation of Article 17 of Regulation No 1371/2007, ÖBB‑Personenverkehr AG is entitled to impose a restriction of liability based thereon in its general terms and conditions for sale of rail journey tickets. If the answer to Question 2 were in the affirmative, Question 1 would become hypothetical, because the action taken by the Schienen‑Control Kommission in purported exercise of powers derived from Article 30 of Regulation No 1371/2007 would necessarily be incompatible with an interpretation of Article 17 of Regulation No 1371/2007 which excused railway undertakings from paying ticket price compensation in the event of force majeure.
IV – Analysis
A – The Answer to Question 2
23. I observe at the outset that there is nothing in the text of Regulation No 1371/2007 to limit the responsibility of railway undertakings under Article 17 with respect to reimbursement of ticket price on the grounds of force majeure. However, as the national referring court points out in Question 2, such a possibility could emerge either through application by analogy of the grounds for exclusion provided for in Article 5(3) of Regulation No 261/2004, Article 20(4) of Regulation No 1177/2010 and Article 23(2) of Regulation No 181/2011, or by taking into account the exclusions from liability provided for in Article 32(2) CIV, which is included in the Annex to Regulation No 1371/2007 and as such is a part of it, and which also concerns compensation for unplanned disruptions to railway journeys. Moreover, as I have already mentioned, it is claimed that force majeure constitutes a general principle recognised in EU law.
1. On Article 32(2) CIV
24. With regard to Article 32(2) CIV, in my opinion, and contrary to submissions made in the written observations of the Commission, ÖBB‑Personenverkehr AG, and Germany, Regulation No 1371/2007 does not connect the responsibility of railway undertakings under Article 17, with respect to reimbursement of ticket price, with the compensation rules appearing in Article 32 CIV as annexed to Regulation No 1371/2007.
25. As was pointed out in the written observations of Sweden, pursuant to Article 32(2) CIV, circumstances beyond the control of carriers relieve them from liability to compensate the type of harm referred to in paragraph (1) of that article and that harm only. This consists of ‘the reasonable costs of accommodation as well as the reasonable costs occasioned by having to notify persons expecting the passenger’ in the cases where loss or damage results from the fact that, by reason of cancellation, the late running of a train or a missed connection, a passenger cannot continue his journey the same day or that its continuation could not be reasonably required.
26. Hence, the force majeure clause in Article 32(2) CIV applies as a restriction to the duty to compensate for rail passengers the harm referred to Article 32(1), which does not include ticket price paid for a delayed or cancelled service. Article 32(1) refers only to accommodation and notification costs.
27. I agree, therefore, with the approach taken in the written observations of Sweden, where it was argued that any limitation on compensation for a ticket price, in the event of delay as prescribed in Article 17 of Regulation No 1371/2007, is addressed exhaustively in that same provision. Article 17(1) limits the liability of the railway undertaking by stating that the ‘calculation of the period of delay shall not take into account any delay that the railway undertaking can demonstrate as having occurred outside the territories in which the Treaty establishing the European Community is applied’. Article 17(4) goes on to provide that compensation will not be payable in circumstances in which the passenger has been ‘informed of a delay before he buys a ticket, or if a delay due to continuation on a different service or re‑routing remains below 60 minutes’.
28. I do not agree with the arguments of Germany, ÖBB Personenverkehr AG, and the Commission to the effect that the CIV, and more precisely Article 32(2) thereof, are relevant because of recital 14 and Article 15 of Regulation No 1371/2007. Article 15 states, under the heading liability ‘for delays, missed connections and cancellations’ that subject ‘to the provisions of this Chapter, the liability of railway undertakings in respect of delays, missed connections and cancellations shall be governed by Chapter II of Title IV of Annex I’, while recital 14 states that it is ‘desireable’ for the system of compensation established under Regulation No 1371/2007 to be on the same basis as, inter alia, the CIV. But the words ‘[s]ubject to this Chapter’ subordinates Article 15, and therefore the CIV, to the express rules contained in Article 17. Moreover, I am unable to accept an interpretation of recital 14 that would diminish, by recourse to the CIV, the level of protection afforded by Regulation No 1371/2007, either in Article 17 or elsewhere.
29. Moreover, Article 32(3) CIV refers the question of reimbursement of ticket price back to national law, which in the case at hand must be understood as a reference to Article 17 of Regulation No 1371/2007. Article 32(3) CIV states that national law ‘shall determine whether and to what extent the carrier must pay damages for harm other than that provided for in paragraph 1. This provision shall be without prejudice to Article 44.’ (6)
30. Harm ‘other than that provided for’ in Article 32(1) CIV clearly includes any reimbursement of ticket price. This is indirectly acknowledged in the Explanatory Note to CIV. (7) It is explained in point 3 of the explanations of Article 32 CIV that the solution found (in Article 32(1)) remains unsatisfactory from the customer’s point of view as passenger traffic delays represent a typical case of improper performance of the contract of carriage. Mention is also made of the fact that, in numerous legal systems, improper performance of the contract justifies reduced remuneration, i.e. in the case of railway passenger transport contracts, reduction of the transport charge. In other words, the CIV leaves the issue of reimbursement of ticket price to be dealt with by national law, which means that it is excluded from the scope of the force majeure exception in Article 32(2) CIV.
2. Force majeure as a general principle of law
31. Under the Court’s established case-law, in the absence of any specific legislative definition, as is the case in the dispute to hand, ‘recognition of circumstances constituting force majeure presupposes that the external cause relied on by individuals has consequences which are inexorable and inevitable to the point of making it objectively impossible for the person concerned to comply with their obligations … The concept of force majeure must be understood as meaning abnormal and unforeseeable circumstances beyond the control of the trader concerned, whose consequences could not have been avoided despite the exercise of all due care, so that conduct of the public authorities may, according to the circumstances, constitute a case of force majeure’. (8)
32. However, it is important to recall the context in which force majeure is being relied on in the present case, before any assessment is made of the above general principle with respect to the facts to hand. Force majeure is not relevant in the main proceedings in any of the ‘classical’ contexts in which it has arisen in the Court’s case-law to date, such as, for example, an argument for the extension of the time‑limit applicable under Article 45 of the Statute of the Court of Justice for instituting proceedings, (9) or as a lawful excuse for non‑performance of a contractual obligation, (10) or in the interpretation of specific provisions in EU legislation providing for force majeure or equivalent conditions. In this last context, the Court has consistently held that ‘since the concept of force majeure does not have the same scope in the various spheres of application of EU law, its meaning must be determined by reference to the legal context in which it is to operate’. (11)
33. Rather, what seems to be occurring in the present dispute is somewhat novel reliance on the EU conception of force majeure. The national court wishes to know whether the general principle of EU law appertaining to force majeure means that Regulation No 1371/2007, or at least Article 17 thereof, falls to be interpreted in such a way that ÖBB‑Personenverkehr AG is entitled to refuse ticket price compensation in the event of its occurrence. This argument has been raised even though neither force majeure nor conditions that are equivalent to it are mentioned in Article 17 or, as I have already explained, anywhere else in Regulation No 1371/2007 that is relevant to the interpretation of Article 17.
34. Such an interpretation of Article 17 of Regulation No 1371/2007 is, in my opinion, impossible in the light of the objectives of Regulation No 1371/2007 as a consumer protection measure.
35. For example, recital 1 of Regulation No 1371/2007 states, inter alia, that it is important to safeguard users’ rights for rail passengers, while recital 2 makes reference to the fact that the Commission’s communication ‘Consumer Policy Strategy 2002 – 2006’ sets the aim of achieving a high level of consumer protection in the field of transport. Recital 3 points out that, since rail passengers are the weaker party to the transport contract, passengers’ rights in this respect should be safeguarded, while recital 6 calls for, inter alia, the strengthening of the rights of rail passengers. The same legal principle underpins Article 6 of the regulation which establishes the mandatory nature of the obligations towards passengers pursuant to the regulation.
36. Given that Regulation No 1371/2007 is a measure that is aimed at enhancing consumer protection, in the event of any ambiguity its provisions must be interpreted according to this goal. This implies that restrictions on the liability of railway undertakings must be applied strictly, and their scope cannot be widened by means of interpretation to the detriment of consumers. (12) This same imperative precludes, incidentally, the drawing of any analogy with the role of force majeure in Article 32 CIV(2) which I have addressed at points 24 to 30 above.
37. Moreover, in my opinion the question of what counts as force majeure, and its effects in the context of consumer rights law, must be primarily determined by the legislator. As noted above, in EU law the meaning of the concept of force majeure must take account of the legal context in which it operates. Therefore, there is nothing unusual in the divergence in EU legislation with regard to the consequences of force majeure, thus explaining the distinction in Regulation No 1371/2007 between compensation for ticket price under Article 17, and compensation of consequential losses and damages caused by the improper performance of the passenger transport contract under the provisions of the CIV in its annex. In other words, had the EU legislature aimed at limiting the applicability of Article 17 of Regulation No 1371/2007 on grounds of force majeure, this would have been clearly indicated in the wording of the regulation.
38. Contrary to arguments made by Germany at the hearing, in my view there is nothing inconsistent in passengers not being entitled to compensation for accommodation costs in the event of force majeure causing a long delay, but retaining an entitlement to refund of the ticket price in the case of even shorter delays. The legislature may have considered it appropriate to protect railway undertakings from liability for unforeseeable compensation claims in the event of force majeure, while precluding them from keeping the full remuneration for any service they were not able to perform properly. This is a matter of policy, not of legal logic.
3. Analogous application of force majeure rules in Regulations Nos 261/2004, 1177/2010, and 181/2011
39. I am also unable to adopt arguments made by the Commission and ÖBB‑Personenverkehr AG to the effect that railway undertakings may exclude their obligation to pay compensation of the ticket price in cases of force majeure by analogy with the grounds of exclusion provided for in Article 5(3) of Regulation No 261/2004, Article 20(4) of Regulation No 1177/2010 and Article 23(2) of Regulation No 181/2011, concerning respectively air, boat, and bus travel.
40. I acknowledge that, as mentioned above at point 31, the EU concept of force majeure entails ‘abnormal and unforeseeable circumstances’. However, in the context of railway passenger transport contracts, the most usual causes of force majeure, namely difficult weather conditions, railway infrastructure damages, and labour market conflicts, in fact have a foreseeable statistical frequency even if their individual instances cannot be predicted with certainty. This means that the prospect of them occurring is known to railway undertakings in advance. (13) This also means, therefore, that they can be taken into account when calculating ticket pricing.
41. Moreover, the Court held earlier this year that the EU legislature was able to establish rules for providing a level of customer protection that varied according to the transport sector concerned. In McDonagh, in the context of a successful challenge to the refusal of an airline to provide the care required under Article 5(1)(b) of Regulation No 261/2004 in the light of flight cancellation after the eruption of the Icleandic volcano Eyjafjallajökull, the Court rejected arguments to the effect that an obligation to provide care imposed on air carriers would breach the principle of equal treatment, because such an obligation does not fall upon other modes of transport, namely rail travel under Regulation No 1371/2007, sea and inland waterway travel under Regulation No 1177/2010, and bus and coach travel under Regulation No 181/2011. (14) In justifying the difference in treatment, the Court of Justice held that the ‘situation of undertakings operating in the different transport sectors is not comparable since the different modes of transport, having regard to the manner in which they operate, the conditions governing their accessibility and the distribution of their networks, are not interchangeable as regards the conditions of their use’. (15)
42. In the light of this, a just division of risk (16) may preclude any contractual term that would require a passenger to pay fully for a rail service that was not delivered properly due to force majeure.
43. For these reasons I propose that Question 2 be answered in the sense that Article 17 of Regulation No 1371/2007 is to be interpreted as meaning that a railway undertaking may not exclude its obligation to pay compensation of the ticket price in cases of force majeure.
B – The answer to Question 1
44. In Question 1 the Verwaltungsgerichtshof asks whether Article 30(1) of Regulation No 1371/2007 is to be interpreted as meaning that the national body designated responsible for the enforcement of that regulation may prescribe, with binding effect on a railway undertaking whose compensation terms do not conform to the criteria laid down in Article 17 of that regulation, the specific content of the compensation terms to be used by that railway undertaking, when national law permits that body only to declare such compensation terms null and void.
45. I recall that according to Article 30(1) of Regulation No 1371/2007, each national body responsible for enforcement of the regulation must ensure the rights of passengers are respected.
46. It is established that, although EU regulations are directly applicable and generally have immediate effect in the national legal systems, fetters have been placed by the Court on their effects when a measure of discretion has been left to Member State authorities with respect to the adoption of measures of application.
47. It was held in Case C‑367/09 SGS Belgium and Others (17) that Articles 5 and 7 of Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (18) could not be the sole foundation for the imposition of administrative penalties under Member State law because they merely laid down ‘general rules for supervision and penalties for the purpose of safeguarding the EU’s financial interest’. (19) The Court also recalled the general principle of EU law, which is now reflected in Article 49 of the Charter of Fundamental Rights of the European Union on ‘the principle of the legality of criminal offences and penalties, that no administrative penalty may be imposed unless an EU act prior to the irregularity has made provision for it’, (20) and that ‘a penalty, even of a non‑criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis’. (21) This therefore suggests that the Court should be slow to conclude that Article 30 of Regulation No 1371/2007 supplies the Schienen‑Control Kommission with a sufficient legal basis for the issue of the order contested before the national court while such power is not provided by national law.
48. It is true that, under the so called Costanzo doctrine, the Court has consistently held that, when it is not possible to interpret and apply national law in compliance with the requirements of EU law, ‘it is for the national courts and administrative bodies to apply EU law in its entirety and to protect rights which it confers on individuals, disapplying, if necessary, any contrary provision of domestic law’. (22)
49. It is apparent from the case file that the matter has reached the Verwaltungsgerichtshof in the course of an administrative process in which the Schienen‑Control Kommission has purported to alter the compensation terms of ÖBB‑Personenverkehr AG’s ticket sales for rail journeys. As was clarified by questions posed from the bench at the hearing, the Schienen‑Control Kommission has two kinds of functions.
50. First, in situations such as those that arose in the Westbahn judgment, (23) it acted as a quasi‑judicial administrative tribunal within the context of contentious two‑party proceedings. As the Court confirmed in that case, it possesses the necessary qualities pertaining to independence and composition to fulfil the criteria of the Court’s case‑law in this respect.
51. However, in these proceedings the Schienen‑Control Kommission has the role of an administrative authority, to whom have been attributed the tasks of the competent national body in the context of enforcement of Regulation No 1371/2007.
52. More precisely, pursuant to Article 78a EisbG, the Austrian organ for surveillance of railway activities, the Schienen‑Control GmbH, which is organised as a private limited company, acts as the mediator between passengers and railway companies with respect to application of Regulation No 1371/2007.
53. Under Article 78a(2) EisbG complaints by passengers referred to in Article 30(2) of Regulation No 1371/2007 are made to the Schienen‑Control GmbH. Complaints can also be made by associations and certain public bodies. Schienen‑Control GmbH can adopt non‑binding recommendations on the matter. The competence of Schienen‑Control GmbH is without prejudice to competences of ordinary courts and authorities. This means that a passenger may initiate civil proceedings against the railway undertaking and seek redress for the application of compensation terms that the passenger considers to be incompatible with EU law.
54. Pursuant to Paragraph 78b(1) EisbG, when mediation does not lead to an amicable solution, Schienen‑Control GmbH informs the Schienen‑Control Kommission.
55. The Schienen‑Control Kommission may, under Article 78b(2) EisbG, at its own initiative, declare wholly or partially null and void the compensation terms of a contract issued by the railway undertaking for the purposes of Article 17 of Regulation No 1371/2007.
56. This decision can be appealed by the railway undertaking before the Verwaltungsgerichtshof. In these circumstances, the Schienen‑Control Kommission takes the role of the defendant in the judicial proceedings. Hence, in such a context the Schienen‑Control Kommission cannot be considered to be a court or tribunal for the reason that it is the opposing party in the dispute with ÖBB‑Personenverkehr AG. (24)
57. Therefore, whatever the scope may be of the Costanzo obligation on administrative authorities to ‘apply EU law in its entirety and to protect rights which it confers on individuals, disapplying, if necessary, any contrary provisions of domestic law’, (25) it cannot extend to obliging such authorities to comply with the Court’s case-law on the provision of effective judicial remedies to secure the enforcement of EU rights.
58. Moreover, in the present case the Schienen‑Control Kommission would not be required to ‘disapply’ a Member State law, but actually exercise a competence not provided under Austrian law. In other words, the order the Schienen‑Control Kommission wishes to adopt would not be a substitute for the declaration referred to in Article 78b EisbG, but would supplement it with an additional obligation for the railway undertaking.
59. In the light of the above principles, and the wording of Article 30(1) of Regulation No 1371/2007, in my opinion it is impossible to interpret this provision as affording the Schienen‑Control Kommission with an authority to issue specific orders to railway undertakings like ÖBB‑Personenverkehr AG concerning the alteration of compensation terms. Such a power would require attribution to the authority of a specific administrative competence, in much the same way as the rule requiring administrative penalties to be based on clear and specific legal bases. Indeed, Article 30 of Regulation No 1371/2007 is even more open ended than Articles 5 and 7 of Regulation No 2988/95, the measures considered by the Court in SGS Belgium and Others and which, as I have already mentioned, were considered by the Court to be an insufficient foundation for the imposition of an administrative penalty.
60. Therefore, I propose answering Question 1 in the sense that Article 30(1) of Regulation No 1371/2007 is to be interpreted as meaning that the national body designated responsible for the enforcement of that regulation may not prescribe, with binding effect on a railway undertaking whose compensation terms do not conform to the criteria laid down in Article 17 of that regulation, the specific content of the compensation scheme to be used by that railway undertaking when national law permits that body only to declare such compensation terms null and void.
C – Complementary observations
61. However, in my opinion the answer to Question 1 must be supplemented to give a complete assessment of the legal principles at stake. A more thorough analysis of the obligations of ÖBB‑Personenverkehr AG under Regulation No 1371/2007 and the role of the Verwaltungsgerichtshof are required before this can occur.
62. In a nutshell, the real problem here lies in the apparent absence of national laws with sufficient ‘teeth’ to secure the effective enforcement of Article 17 of Regulation No 1371/2007. According to the order for reference and the observations of the Schienen‑Control Kommission, once the latter declares ÖBB Personenverkehr AG’s compensation terms void, it simply readopts similar terms. This results in a ‘ping‑pong’ game between the regulator and the railway undertaking.
63. However, even though this situation raises suspicion that proper enforcement of Regulation No 1371/2007 is not guaranteed in Austria because of weaknesses in the powers provided to the Schienen‑Control Kommission by Austrian law, including lack of appropriate sanctions, there is a limit to what can be achieved in the present proceedings to remedy this. Given that the case to hand is not an infringement procedure brought against Austria by the Commission, and due to the obvious evidential problems, I am unable to address this question any further. Even so, there are principles of EU law that merit consideration and which bind ÖBB Personenverkehr AG and the Verwaltungsgerichtshof. They are also relevant to the enforcement of Article 17 of Regulation No 1371/2007.
1. Obligations of ÖBB Personenverkehr AG
64. First, under EU rules concerning the legal effects of regulations in Member State law, ÖBB Personenverkehr AG is bound to comply with the obligations imposed by Article 17 of Regulation No 1371/2007, given that, unlike Article 30 of the same regulation, it vests Member States with no discretion, and therefore allows for no national measures of implementation. (26) In other words, the existence of ÖBB Personenverkehr AG’s legal obligations towards railway passengers under Article 17 of Regulation No 1371/2007 in no way depends on the existence of sanctions or remedies at the national level.
65. It is equally well established that directly applicable provisions of regulations, like Article 17 of Regulation No 1371/2007, are enforceable horizontally in claims between private sector actors. (27)
66. This means that ÖBB‑Personenverkehr AG is legally bound by Article 17 of Regulation No 1371/2007, and that passengers would be entitled to rely on it in any civil proceedings brought against ÖBB‑Personenverkehr AG with respect to ticket price compensation. I note that pursuant to Article 78a(2) EisbG, the competences of ordinary courts are not affected by the special procedure involving Schienen Control GmbH and ultimately the Schienen Control Kommission.
67. I am mindful of the fact that recourse to civil proceedings may not afford consumers who would like to recover the ticket price for journeys disrupted by force majeure with a practicable alternative. This is so due to, among other things, the small sums involved and the relative expense of civil litigation. Yet, in my opinion, any adjustment to the available civil procedures for the enforcement of Regulation No 1371/2007 is a matter for the Austrian legislature. Hence, it appears that it cannot be claimed that Austrian law does not provide access to courts for defence of EU law rights which passengers derive from Article 17 of Regulation No 1371/2007. (28)
2. The position of the Verwaltungsgerichtshof
68. The Court has consistently held that, in the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law. (29) Undoubtedly, the Verwaltungsgerichtshof is a ‘court’ under EU law, and is bound by all the obligations on Member State courts that this entails. This means, therefore, that pursuant to Article 4(3) TEU (ex Article 10 EC) it is bound ‘to take any appropriate measure, general or particular, to ensure fulfilment’ of its treaty obligations, including the safeguarding of individual rights arising from regulations. It is equally well established that a court like the Verwaltungsgerichtshof will have the responsibility ‘to provide the legal protection which individuals derive from rules of Community law and to ensure that those rules are fully effective’. (30)
69. The Commission points out in its written observations, if a situation of ‘ping‑pong’ between the national enforcement body and the railway undertaking, such as that described in paragraph 62 above, endangers the application of the compensation principles of Regulation No 1371/2007, then it is for the Austrian courts to decide whether the relevant provisions of the EisbG should be disapplied.
70. I am mindful of the fact that the Court has received no questions from the Verwaltungsgerichtshof concerning its own duties in the context of sanctions. This means, for example, that the Court of Justice has not been asked to resolve a Comet/Rewe style problem in which a national procedural rule stands in the way of the enforcement of a directly effective EU measure. (31) Nor has the Court been asked to consider a question akin to that referred to in the Unibet case, and which addressed, inter alia, the obligation, if any, of national courts to craft a new remedy to enforce a directly effective EU measure to supplement the sanctions provided under national law. (32) Rather, the question referred in the main proceedings has been confined to the powers of the Schienen‑Control Kommission, a body which I have concluded is an administrative organ for the purposes of the functions it has performed in this case. Yet, given that the dispute falls for resolution by the Verwaltungsgerichtshof in its capacity as an administrative court, the question of the remedies EU law requires it to issue seems, inevitably, to be pertinent.
71. As I have already mentioned, in my opinion, absent the existence of an Austrian procedural rule that is incompatible with the Comet/Rewe line of case-law, or any problem related to the availability of interim relief, (33) in the proceedings to hand EU law casts no obligation on the Verwaltungsgerichtshof to supply any judicial remedy going beyond what it is empowered to issue under Austrian law. (34) Neither the Court’s case-law concerning effective judicial protection, or the obligations incumbent on the Verwaltungsgerichtshof by virtue of Article 47 of the Charter of Fundamental Rights (35) require it to go any further. This is so for two reasons.
72. First, there is no rail passenger that is a party to the main proceedings. Rather, enforcement of the rights afforded by Article 17 of Regulation No 1371/2007 is being sought by an administrative authority, the Schienen‑Control Kommission, against a corporate undertaking, ÖBB Personenverkehr AG. It is the latter who seeks judicial protection against an administrative decision, which in its view goes outside of the remit of the authority, and is incorrect in substance.
73. While Article 30(2) of Regulation No 1371/2007 vests passengers with an entitlement to complain to the appropriate body designated under paragraph (1), and which has occurred in Austria through the role of Schienen‑Control GmbH, the Regulation goes no further, save for the Article 32 duty on Member States to impose effective, proportionate and dissuasive penalties. (36)
74. In my opinion, this means that administrative enforcement of Regulation No 1371/2007 protects passenger rights only indirectly, thereby casting a doubt over whether the Court’s case-law on individual rights, and the consequences this carries for effective judicial protection, is applicable to proceedings between an administrative authority like the Schienen‑Control Kommission, and an entity that is subject to its supervision, like ÖBB Personenverkehr AG.
75. Second, and in any event, the Court’s case-law on effective remedies does not include a requirement for administrative courts to act against the principle reformatio in pejus, or make orders that they are not authorised to issue under national law, (37) with the exception of interim measures to protect the enforcement of EU measures pending final judgment. (38) Here I would refer to the findings of the Court at paragraphs 40 and 41 of the Unibet case. They were as follows:
‘Although the EC Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Community Court, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law (Case 158/80 Rewe  ECR 1805, paragraph 44).
It would be otherwise only if it were apparent from the overall scheme of the national legal system in question that no legal remedy existed which made it possible to ensure, even indirectly, respect for an individual’s rights under Community law (see, to that effect, Case 33/76 Rewe, paragraph 5; Comet, paragraph 16; and Factortame, paragraphs 19 to 23).’
76. In my opinion there would appear to exist legal remedies, both direct and indirect, under Austrian law, that allow rail passengers to dispute Austria’s compliance with Regulation No 1371/2007. (39) Nor has any question arisen in this case of rail passengers or indeed the Schienen‑Control Kommission, being denied right of access to a Court, and which forms the heart of the principles established by the Court under the rubric of effective judicial protection.
77. Moreover, it is established that, when a Member State, in the exercise of its discretion ‘to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law’ (40) has left room for argument of a compliance failure appertaining to the principle of effectiveness, the obligation imposed by EU law on national courts is merely ‘to interpret the domestic the jurisdictional rules in such a way that, wherever possible, they contribute to the attainment of the objective of ensuring effective judicial protection of an individual’s rights under Community law’ (emphasis added). (41)(42)
78. It should be added that the power of the courts to issue orders other than interim measures directed at administrative authorities cannot be considered as forming part of the general EU law principle of effective judicial protection for another important reason. Such a competence has never been attributed to the EU judiciary in relation to other EU institutions. (43) It is difficult to argue, therefore, that more should be required of the Member State courts than the EU judiciary. (44)
V – Conclusion
79. On the basis of these reasons, I propose answering the preliminary questions referred by the Verwaltungsgerichtshof as follows:
Article 30(1) of Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations is to be interpreted as meaning that the national body designated responsible for the enforcement of that regulation may not prescribe, with binding effect on a railway undertaking whose compensation terms do not conform to the criteria laid down in Article 17 of that regulation, the specific content of the compensation scheme to be used by that railway undertaking when national law permits that body only to declare such compensation terms null and void. However, the legal obligation of a railway undertaking to comply with Article 17 of that regulation, as interpreted by the competent national courts and the Court, does not depend on the powers of the national body or the sanctions available to it.
Article 17 of Regulation No 1371/2007 is to be interpreted as meaning that a railway undertaking may not exclude its obligation under that provision to pay compensation of the ticket price in cases of force majeure.