7 June 2012: opinion of the AG Jääskinen in the CJEU case C-136/11 (Westbahn Management)
This new case of the CJEU concerns transport services offered to consumers. We talk a lot on this blog about protection offered to passengers of air planes, but not so often do we get a chance to discuss European measures in other areas of transport, such as railway.
In the given case Westbahn Management wanted to provide passenger services on the railway line between Vienna West Station and Salzburg Central Station. They were granted an operational authorisation to provide these services by decision of the Federal Ministry of Transport, Innovation and Technology of 29 May 2009. In the case referred to the CJEU they sued ÖBB Holding AG which is a sole shareholder in the largest rail infrastructure management company in Austria. The reason for that was a lack of access to the information that the ÖBB had and was not fully willing to share. Namely, the ÖBB disposes of real-time data on all trains operating on the Austrian rail network, including the current positions of trains, arrival/transit/departure times for the remainder of the journey, data on delays and cancellations. They share this data only in so far as it concerns the trains of the railway undertaking they are sharing it with, and not of other railway undertakings. However, all the data is displayed by ÖBB on electronic notice boards at major stations. Westbahn Management required access to all real-time data from the ÖBB in order to be able to inform its passengers about current departure times of their connecting trains, which was especially relevant in case of delays and cancellations. ÖBB refused such a disclosure and claimed that it could only be possible if Westbahn Management concluded agreements with all other railway undertakings operating in Austria, who would then disclose their own data to it. Interestingly enough, a company owned by ÖBB (ÖBB-Personenverkehr AG) refused to sign such an agreement. And so, the legal proceedings began.
The Austrian Commission (monitoring competition proceedings) stayed proceedings and asked the CJEU, whether Article 8(2) of the Regulation No. 1371/2007 of 23 October 2007 on rail passengers' rights and obligations should be interpreted as meaning that information on main connecting services must include, in addition to scheduled departure times, notification of delays to or cancellations of those connecting services. If the answer to this question was in the affirmative, then the second question arises as to the interpretation of Article 5 of the Directive 2001/14/EC of 26 February 2001 on the allocation of railway infrastructure capacity etc. Namely, does it oblige the railway infrastructure manager to make real-time data on other railway undertakings' trains available to railway undertakings in a non-discriminatory manner, as long as those trains constitute main connecting services?
The AG Jääskinen believes that the answer to both these questions should be in the affirmative.
First, the AG considered a claim that information concerning delays and cancellations of train services could amount to a business secret (and therefore, not easily be shared). (Par. 31) The AG does not give credence to this claim, since according to him information will only amount to a business secret under EU law if it was confidential information, disclosure of which could harm the undertaking, and information about train delays and cancellations is not confidential in nature. To the contrary, disclosure of such information is necessary in order to guarantee a well functioning rail transportation system. ÖBB realises that and the importance thereof to passengers since it displays is on electronic boards. (Par. 33-34) Moreover, this information should not be perceived as personal data, that needs additional protection under EU law, since this information does not give away any details on passengers, or even on other service providers as such, but only on the issue of whether the scheduled connecting services are in fact available. (Par. 36)
As far as the objectives of the Regulation are concerned, it aims at safeguarding users' rights for rail passengers and to improve the quality and effectiveness of rail passenger services, as well as to attain high level of consumer protection. (Par. 38)
"This includes the right to obtain information concerning rail journeys both before they commence and while they are being taken, and, wherever possible, as soon as possible (recital 4)." (Par. 38)
A narrow interpretation of the provisions in the Regulation would limit the information to which passengers are entitled to the departure times described in the timetable. It would be contrary to the aims of the Regulation, among which the passengers' right to be informed of late arrivals and departures by the railway undertaking or the station manager as soon as such information is available. (Par. 40) The information on scheduled times of departure and arrival becomes useless in case of delays and cancellations, and if during the journey the passenger might obtain only such information it would be a mere repetition of the information he had already received. (Par. 41) The systematic interpretation of the Regulation confirms the difference between the static information before the journey begins, and the dynamic information during the journey. The information at these different points of time that consumers need is not generally the same. (Par. 42)
Finally, the Directive 2001/14 needs to be interpreted in a way to facilitate reaching of the objectives envisaged under Regulation No. 1371/2007. (Par. 49) This suggests that rail undertakings should be entitled to real time data from the infrastructure manager. (Par. 52)
