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A recent resolution issued by the Transport Regulation Authority on breach of European passenger rights

By resolution No. 217/2022, the Transport Regulatory Authority (“ART”) adopted a sanctioning measure against an important ferry operator pursuant to Legislative Decree 129/2015, for violation of Articles 17 (paragraph 2), 18 (paragraphs 1 and 3) and 24 (paragraph 2) of Regulation (EU) no. 1177/2010 on the rights of passengers travelling by sea and inland waterways.

The case concerns a maritime transport of passengers between Olbia and Livorno, with scheduled departure from Olbia at 11:00 on 27.8.2021 and scheduled arrival in Livorno at 19:00 on the same day. Due to a technical problem, the scheduled departure at 11:00 was not carried out and the ship could not regularly operate the journey. In view of this problem, the operator informed passengers that it was impossible to operate the journey and provided for the reimbursement of expenses incurred by passengers who had requested it.

With resolution No. 95/2022, the ART opened a sanctioning procedure to ascertain the violation of the rules for the protection of passengers’ rights under Regulation (EU) no. 1177/2010. In particular, it was alleged that Articles 16, 17, 18 and 24 of said regulation had been violated.

Article 16 establishes an obligation for the carrier, in the event of cancellations or delayed departures, to inform passengers of the situation, departure time and arrival time “as soon as possible and in any case no later than thirty minutes after the scheduled departure time”. In the opinion of the ART, this rule must be interpreted as meaning that “the carrier must provide all the information in question in a manner that is suitable and adequate to reach the entirety of the travelling public”. In the present case, the procedures adopted were appropriate and suitable for informing passengers, with the result that no infringement of Article 16 can be attributed to the ferry operator.

On the other hand, the objection concerning the infringement of Article 17(2) was considered well-founded. That provision imposes on the carrier, in the event of cancellation or delay in departure necessitating an additional stay, the duty to offer passengers “suitable accommodation” free of charge. In the view of the ART, such assistance must be offered automatically (and not upon request), allowing the passenger to choose whether or not to use this option, without requiring him or her to act independently.

Article 18 (paragraphs 1 and 3) provides that the carrier, in the event of a cancellation or delay exceeding 90 minutes, is required to offer the passenger: (i) either alternative transport to the final destination under similar conditions, or (ii) reimbursement of the ticket price. In the present case the ferry operator, after announcing the cancellation of the journey, sent a text message to passengers informing them of an alternative departure for the Olbia-Livorno/Olbia-Genoa/Olbia-Civitavecchia route “without a cabin and subject to availability”. According to ART, the conditions offered, although not identical, were not “similar” and “satisfactory”, according to the criteria developed by the Court of Justice in its judgment of 2 September 2019, C-570. Indeed, this entailed significant discomfort and additional expense for passengers with night departures to Genoa and Civitavecchia, given the long distances to be travelled, as well as inconvenience due to not being able to use cabins.

Lastly, it was found that Article 24 had been infringed since the operator had not replied to the passengers’ claim within the period of 1 month as therein provided.

Carola Uva

carola.uva@mordiglia.it