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Passengers at Frankfurt Central Station
Photo: Andreas Arnold / dpa
Why leave something simple when it can be complicated. The European legislator has changed the passenger rights for rail customers this week in such a way that it promises more trouble.
The old system had only just settled in: With the train app, it was quite easy to get money back in the event of a delay, and the desired modern service had finally arrived at the state-owned company. In delayed ICEs, the railway staff also often distributed compensation applications on paper, which then only had to be sent in by mail by passengers who were not so online-savvy.
In 2022, Deutsche Bahn said it paid €92.7 million in compensation for delays and cancellations to 3.8 million passengers who had complained – more than twice as much compared to 2021. The figures have been confirmed to me by the railway again this week. The compensation figures are also 75 percent higher than in 2019, although the railway carried 18 million more passengers in long-distance traffic at that time.
But now the rail delays are also being brought back into line with the dispute-prone flight delay model in complaint management. And that's not exactly forward-looking.
Passenger rights on the railways so far
For a long time, passenger rights and air passenger rights were two very different pairs of boots. 132 million travelers bought an ICE or IC ticket in 2022. More than a third of all long-distance trains arrived late in 2022, and 4700 trains were even cancelled without replacement. If you have booked your ticket electronically, the money will now come back almost by itself if you are not driving. And otherwise, you can take another train.
If your train was delayed by more than an hour, you could easily get a 25 percent refund of your individual fare until this week. From 120 minutes delay, there was even half of the fare refunded. It didn't matter for what reason the train was delayed. Around 60 percent of the 3.8 million compensation applications received by Deutsche Bahn were received via the Deutsche Bahn app.
More on the subject
New EU rules: These rights will apply to rail passengers in the future
So far, it has not mattered whether the railway itself was responsible for the delay – for example, due to insufficient planning, sudden sick leave or train drivers stuck in other trains – or whether the train had to stop on the tracks because of a police operation or because trees blocked the tracks due to a storm.
On Tuesday, the homepage of the Federal Railway Authority stated that "the passenger's right to payment of compensation (applies) even if the delay is due to force majeure". Reference was made to a corresponding judgment of the European Court of Justice (26.3.2014, AZ C-509/11).
Force majeure
In the future, however, in the event of force majeure, it will be possible to distinguish between them with a very fine blade. If the railway itself is responsible, it will not only have to replace the tickets of cancelled trains when reporting it (which remains the same), but will also have to pay partial compensation for trains that are too late. However, if the railway is not responsible, for example because of a storm or a police operation, it no longer has to pay. Article 19(10) of the relevant regulation reads as follows:
"Railway undertakings shall not be obliged to pay compensation if delays have occurred due to:
(a) exceptional circumstances such as extreme weather conditions, major natural disasters or serious public health crises, (b) fault on the part of the passenger, or (c) conduct of a third party, such as stepping on the tracks, cable theft, emergencies on the train, law enforcement,
sabotage or
terrorism."
A railway spokeswoman said this week that the railway had looked at how the new law would have affected compensation in 2022. Answer: "In well over 90 percent of cases, we would have compensated in the same way even if the new regulations had been applied in 2022."
More quarrels with customers
Conversely, this means that the railway would not have paid in a few hundred thousand of the 3.8 million cases. The corresponding deterioration for customers had been enforced by the EU Commission and the member states in a lengthy dispute with the EU Parliament in 2020. Initially, this did not want a force majeure protection clause for the railway companies. The then Federal Minister of Transport, Andreas Scheuer (CSU), was particularly committed to the protection of railway companies and against customer rights.
Something similar – i.e. with a company protection clause for force majeure – has already been regulated in the Air Passenger Rights Regulation. In addition to the costs incurred, airlines must also pay compensation if the plane is more than three hours late. Depending on the distance of the trip, 250, 400 or 600 euros each way. But only if the airline itself is responsible. So if the cabin crew or the plane goes on strike, she has to pay. If the air traffic controllers go on strike or a volcano erupts, this is force majeure and the airlines do not have to pay any compensation.
When is a wind a storm, what is force majeure? For two decades, passengers and airlines have been arguing about this, often bitterly, all the way to the European Court of Justice. Also because there is a lot of money at stake. For example, an aircraft within the meaning of the ECJ has only arrived when the doors of the aircraft are opened. The few minutes between landing and open doors can be decisive in determining whether the airline pays more financially because it has to pay compensation to all passengers.
Accordingly, the Public Passenger Transport Arbitration Board (SOEP) also receives about seven times as many disputes per year from passengers as from rail passengers – 25,600 to 3800.
Almost half of all SOEP disputes involving rail customers already revolve around delays and train cancellations.
In any case, there will be more disputes with rail customers in the future. Karl-Peter Naumann from the Pro Bahn passenger association also expects this: "How long is the personal injury – i.e. the accident – responsible for the delay of the train or trains. And at what point are these mistakes in the disposition of the railway?« This is just one of many questions.
The new regulation is also unfortunate in combination with the introduction of the 49-euro ticket. After all, anyone who misses the ICE connecting train with an extra ticket with a 49-euro ticket in delayed local transport should not receive any compensation now. On the other hand, anyone who buys a through ticket for local transport and ICE would be compensated. "It's a rude awakening," says Naumann. Even if the railway has announced that it will be accommodating with the damage. "There's a lot in store for the SOEP arbitration board."
The following figure shows how big the problem can become: In 2022 alone, 37,000 regional trains were cancelled without replacement.
Currently, you can track on the website of the railway how many of the trains of the railway were not on time in the past month. In May, the figure for long-distance trains was again more than a third.
So far, Deutsche Bahn has even been lucky, because by far not all passengers entitled to compensation also submit an application, according to SOEP spokeswoman Sabine Cofalla. There are also rail customers who want compensation on principle alone, even if it is only a matter of a few euros.
The SOEP has not yet hired more staff for the impending new disputes, but it sees a lot ahead. And then, in the future, the question will arise: "When is a heavy rain force majeure?" In any case, the SOEP is currently looking for lawyers who can be appointed as arbitrators.
What to do?
As a passenger, you should pursue the following strategy in the future:
Buy as many of your tickets as possible with the train app. This will make it easier to pay compensation online later on. If the worst comes to the worst, log in with your customer account, click on "View all bookings" or "My tickets". Then select "Edit Order" and then the "Passenger Rights" option. There you indicate the actual time of arrival and whether you have incurred any additional expenses. Then your personal details will appear pre-filled. Now all you have to do is enter the IBAN for your account and press send. You should receive feedback within two weeks.
If the train is cancelled without replacement, document this as well and demand compensation, even and especially when you take the next train.
If the train is delayed by more than 60 minutes during the journey, be sure to claim compensation. This is because the railway must then first invoke force majeure and prove it. In case of doubt, you still have the chance to receive a goodwill voucher.
Be quick with your claim for compensation. You used to have twelve months to claim your money, but now you only have three. If you miss the deadline, you will have to rely on the goodwill of the railway.
If you need a taxi to reach your bed for the night after a train delay, the train will pay up to 120 euros instead of just up to 80 euros. This also applies to cases of force majeure.
If the railway is stubborn, use the SOEP arbitration service .
If you do not get any compensation with the new rules and also with the announced goodwill of the railway, then let Federal Transport Minister Volker Wissing know. The postal address is: Federal Minister of Transport Dr. Volker Wissing, Invalidenstraße 44, 10115 Berlin. His ministry is largely responsible for the current deterioration of passenger rights. The Federal Railway Authority fahrgastrechte@eba.bund.de is officially responsible for your complaints about the railways.