Welcome to ERA – Academy of European Law

Good Afternoon

I want to give a rather different perspective, I want to talk about the policy and the practical aspects of the law that is in place on passengers rights, and I want to think about whether the law that we have is working in practice, so I will be looking at, specifically loking at passengers rights and I will be using the prime example of the air passengers rights where we have a lot of feedback already, that tells us how's it working. Let me start by putting this in context. This is a quote from a Danish wheelchair user who is a member of the European Disability Forum who said: “When I book a plane, even months in advance, I am still not sure if I am going to reach my final destination. I don't even know if I am going to board. For persons with disabilities, travelling in Europe is still a challenge.” Now that's why we need legislation and above all that’s why we need legislation that works.

And in fact this particular gentleman has recently had a very bad experience of being denied boarding on grounds of disability. So this isn't just theory, this is a reality of daily life.
Let's just look at the context of transport, and why it is important. Clearly for all of us the ability to travel is fundamental and for people with disabilities it's no different, it means being able to live independent lives. Your opportunities to find employment to get further education, to do anything you want to do is dependent on you being able to move, and for many years in Europe where we have a lot of old transports systems, old infrastructure, there have been many challenges. The picture there illustrates the kind of undignified and inappropriate way, that used to be the only means to get wheelchair users on board trains across Europe. High steps, narrow doorways, a lack of information, limited assistance, all of these things were common place for many years.

But in the last 20 years, there have been enormous numbers of changes and many countries have taken steps to tackle transport accessibility. Some of it has been in response to what you might call direct action by disabled people. We see here a wheelchair user blocking the path of a tram. Our experience in London was of wheelchair users chaining themselves to our famous red double-decker buses, and effectively bringing London to a standstill, and that was one of the ways in which political attention was focused on the need to deal with making transport accessible. The way that different countries has tackle this has varied. Some have introduced civil rights legislation, some have brought in technical regulations, some have drawn up design standards or best practice guidelines which are not statutory but which are advisory, so there have been a number of different approaches and in some cases those approaches have been taken in parallel.

And of course there has also been legislation at European level and in particular that has been technical. The two biggest developments have been the Directive known as the bus Directive which goes back to 2001 and that defines access standards for buses and coaches, and that's entirely technical, it's to do with the height of the steps, the width of the doorway, the ability for wheelchair users to get in the board and so on. So that has been in place for a long time, and now determines the technical construction of vehicles across Europe. More recently there have been parallel developments in the rail industry. TSI, which is Technical Standards for Interoperability, have been developed on people with reduced mobility not for domestic internal rail services but for the trans-European conventional and high-speed rail systems, and those standards apply both to the design of the trains themselves, the rolling stock, and to the stations.

So again, technical standards setting common parameters, because clearly for all of us by definition, the journey begins in one place and ends in another, and if you don't have the same level of access and the same standards at both ends of the journey, you won't have the confidence to travel if you have any kind of disability. But for many disabled people it isn't just about the technical design of the vehicles and, as I say, we made huge progress in the last 20, 25 years in addressing that, but it's the awareness and understanding and support of transport staff, which is every bit as important and most of the complaints now that we get in many countries across all forms of transport are to do with discrimination that has come with ignorance if you like, It's to do with staff who have behaved incorrectly , who have not recognized needs and so on. So, the more that the infrastructure in the vehicles becomes accessible, the more the problem with attitude and awareness becomes apparent. So, for that reason the concept of passenger rights as a vital element of the transport chain, if you like, is hugely important.

So, we already have in force now two bits of Passengers Rights Legislations. We have Regulation 1107/2006, and I'll be talking quite a bit about that, to illustrate some of the implementation issues. That deals with the rights of disabled people when traveling by air. More recently we have Regulation 1371/2007, which is about Rail Passengers Rights and Obligations and on the horizon we have two more, Regulation 1177/2010 which deals with passengers travelling by sea and inland waterway, and Regulation 181/2011 which is the rights of passengers in bus and coach transport. And that is predominantly long distance bus and coach transport, journeys over 250km, and that will come in in March 2013.

But of all of these only the air travel Regulation is exclusive to disabled people. The other three are general passengers rights regulations, so they give protection to all passengers in terms of compensation, expectations of assistance and so on. But they all contain specific areas about disabled people and people with reduced mobility, and essentially they have taken the text of the aviation Regulation and transposed it, obviously making inappropriate the mode of transport, but the provisions are very much the same, so what I talked about what’s happening in aviation you will be aware that the same requirements are reading across to buses, to rail, and to sea and waterway transport.

Lets start by defining a “disabled person” in the context to these rights regulations. And here, unlike the UN-Convention, which talks about long term disability, here we are talking about any physical disability, permanent or temporary, any intellectual impairment, or any other problem caused by age or disability. There is currently some hard thinking going on by the lawyers of the European Commission, who've looked to this wording and decided that age could mean young as well as old. Now, clearly when that Regulation was drafted, we were all thinking about old, and the disabilities that are linked very much with ageing, but Commission lawyers are now thinking that maybe the Regulation needs to apply for example to young children traveling alone. That's causing considerable upset to the airports and airlines because there is already provision, known as an company minors, for providing for that, but it's a service you pay for, under this Regulation it would need to be provided for free, so there is some interesting discussion going on on that topic.

The Regulation 1107 applies to people traveling by commercial air passengers services, that they are departing from, or arriving at, or in transit through an airport in an EU Member State, and the primary responsibility for meeting the needs of disabled people is the airport managing body. There was a long discussion during the drafting process about whether the prime responsibility should lay with the airport or the airline, the decision was to put it with the airport. But just to go briefly through the provisions, and than I'll come on to what's happening in practice: clearly there are provisions of the airlines. They cannot refuse to carry disabled person on grounds of disability, except in order to meet applicable safety requirements, and I will come back to what that means, or, as you see clearly in the case of the very small aircraft that I've illustrated, if its physically not possible to fit a wheelchair onboard or to lift a person onboard.

The airport’s responsibility is to provide assistance for disabled people, and that they either can do themselves or they can contract it out, but they retain the responsibility. And that assistance, I mean this is very much common sense, includes moving to/from your designated point of arrival, that may be the train station, the long term car park, it could be any point at which you arrive. It includes checking/collecting baggage, boarding/disembarking, stowing you baggage on board, getting through customs security, all of those processes, there must be assistance available to help you do it. Airports must provide that without charge to the disabled passenger, to cover the costs, they can levy a charge on all airport users, and that charge is shared among all the airport users on the basis of the number of passengers carried, and the requirement is for the charge to be cost related and transparent. As you might imagine, in some airports, some of the low-cost carriers have been in fierce dispute with the airport about the necessity for some of the charges, and there have been some interesting debates going on.

The airport managing body also has to set quality standards and to determine what's needed to meet those and that has to be done in cooperation with airport users which is essentially the airlines who fly from that airport and with organisations representing disabled people. And they have to take account of the availability of good practice standards that are already in existence and they have to publish the quality standards to which they are working. They must also, and this is very important, ensure that all staff are properly trained in disability awareness and disability equality, and that is not just when they first join but it's also on a refresher basis.

The air carrier has to seat the person where they are most comfortable on board, subject to safety requirements you be aware that the exit row on aircraft is always, if you are an young child or if you’re an older person, you're not permitted to sit in that row. The same applies to disabled people. They have to carry essential mobility equipment such as wheelchairs free of charge. There is also responsibility of the part of the passengers. If you need assistance you're supposed to tell the airline or your travel agent at least 48 hours before you travel. If you don't do that, the airport still has a duty to make all reasonable efforts to make sure that you get on board of your flight, but if you turn up an hour before the flight and you haven't booked assistance and it's a busy airport, the chances are they won't have the resources available to help you. Again there has been some interesting debate with some of the low-cost carriers who asked the airports not to bring passengers to the gate if they had not pre-notified, because they didn’t want to delay the flight departure. Again, the airport has a clear legal obligation to make their best effort to get the passenger to the gate. So, that too has led to some interesting debates.

And for enforcement every Member State has to designate one or more bodies to make sure that the Regulation is being implemented, and the rights of disabled people are being respected. In almost every case that is the Civil Aviation Authority. And if the disabled person thinks that his rights have been breached, he can go to the airport, he can go to the air carrier and if he is not satisfied, he can than go to the National Enforcement Body. So, there is a process of complaint, and I'll come on to talk about how that is working.

Let me just put up here a number of examples of what is actually happening in practice:
a (pre-notified) wheelchair user left waiting over an hour for assistance; a disabled passenger left to wait in a small windowless room with no information; a wheelchair user dropped by assistance providers whilst boarding a flight; blind passengers being asked to sit in wheelchairs to make it easier to move them through the airport.

You can immediately see that all these examples are inappropriate, unacceptable, undignified. All of these have happened since the Regulation came into effect. So why is that? Well, in most countries, disabled people are still unaware that the Regulation exists or that they have any rights. One airport, which I’d better not name, so they didn’t tell people about how to complain because it would be too complicated, let's not bother people with that. In one country a recent survey showed that 70% of disabled passengers didn't know that they had any rights. And that's a country that has actually made quite a lot of effort to inform people.

One of the biggest problems in practice has been many airports contracted out the assistance to the large handling companies, who, generally speaking, do toilet cleaning, they do general cleaning, they do everything. So they were no specialist in this area, they had untrained staff. There have been a lot of problems, the picture there, where you can see very clearly, but I must just tell you that this elderly disabled lady was made to sit on her own luggage, which this member of staff regarded as the easiest way to get her through the airport. There has been a high level of complaints in some airports, so many of the biggest airports in Europe have now re-tendered for assistance provision with much stronger requirements for training and quality standards.

A recent report that was commissioned by the European Commission has shown that the length and depth of the training varies tremendously. In the good airports, the key people who actually provide the physically assistance and escorts through the airport have several days of face-to-face classroom training. In other airports, and again big capital cities airports in Europe, they are told to sit and watch a video for 20 minutes and then go and do the job. So you can see the clear difference in standards that will results from that. And the frequency of refresher training: for some its monthly, for some every two years. And it's not difficult to see that our goal of harmonized service for PRMs disabled people is not going to be achieved with that huge level of variation. So you have no confidence that the airport you're departing from or arriving at will have staff who will have more than 20 minutes in front of a computer screen.

One of the other big problems that is arising is that many disabled people don't see any improvement in the service they get if they go through the correct process of pre-notifying, sometimes they find that the assistance they've booked isn't available, or again at one airport, a capital city airport in Europe, you arrive at the car park or the station and you’re told the assistance is only available beyond check-in. How you are meant to get from where you are to where the assistance begins is not apparent; a huge gap. So, because of that, in many airports levels of pre-notification are falling, people are simply not seeing the point in giving any advance notice. That in turn puts a lot of strain on the capacity of the airport to turn up with the right equipment at the right time to make sure that people don't miss their flights. So it's a difficult situation.

When we get on board, and this is probably the most frequent area of complaint by disabled people, denied boarding is a big problem, and this is not a clear area by any means in European Law at the moment, in fact there really is no clear definition, the EU-OPS, which is a sort of operational manual, talks about not having more disabled passengers than there are able-bodied passengers, to assist in the event of emergency. How you define able-bodied when some of them will be drinking red wine since the time they took of, others will have panic attacks if there is a problem and so on, I don't know, but that's as good as we have. But the real problem is that every aircraft captain is the ultimate decision maker on whether or not to accept any of us on board and the same applies to disabled people. But the difficulty is that they are, on the whole, making that decision without the knowledge of what different kinds of disability mean in terms of people’s ability. So, they might look at somebody who is slightly deaf and not making a distinction between them and somebody who is paralyzed from the neck down in terms of an ability to be self-sufficient. So, there have been some crazy judgments.

One recent example on a flight from Paris to Nice: a woman in the wheelchair always travelled alone, flew alone, no problem. When she came to make the return flight, same airline, same route, Nice – Paris, the captain said “I'm not taking you unless you have an accompanying person.” So, again, how on earth do you have the confidence to travel if you subject to that kind of problem. The EASA, the European Aviation Safety Agency, has done some researche and is considering this issue. They will than make recommendations to the Commission who will decide about the need to regulate. But all of this is going to take at least 6,7,8 years before anything happens. So in the meantime this lottery, if you like, of not knowing whether or not you’re going to get on board is going to continue.

The other huge problem that happens on a daily basis is lost and damaged mobility equipment and, in particular, wheelchairs. In a good airport you can stay in your wheelchair to the door of the aircraft, so it's the last thing that's put into the hold, and generally that than survives. If it's taken from you at the time you check-in, and it's put through the baggage system, there is a very high chance that the baggage handlers will pick it up by whatever is easiest and it may arrive in bits or it may be damaged in transit. The regulation requires that replacement wheelchairs are provided but they don't have to be on a like-for-like basis, and for many wheelchair users, the chair is highly specialized to their particular needs and requirements, and being given any old wheelchair that the airports have is just not manageable, it's not possible.

This is also the one area in which compensation is provided under the regulation, and because it's linked to the Montreal Convention, and wheelchairs are considered as baggage, the lighter the wheelchair, the less compensation you get, and the most expensive wheelchairs are the lightest because they are made of titanium, so there is a lot of problems there. Again, the European Commission are working on trying to produce a different regime to sort that one out.

Complaints. Again, the Commission report recently showed that of the 27 National Enforcement Bodies, 8 had had no complaints at all (this is a Regulation that's been around since 2008) and 26 had received fewer than 50 complains, and no sanctions, this was in 2010, no sanctions had been applied. On the other hand if you talk to the European Disability Forum, they will say that disabled people don't complain because they don't know their rights, they don't know how to complain, they don't speak the language of the country in which the problem occurred, or they don't think it is worth the effort because there’s no compensation available under the law. In some countries like the UK, it is possible to bring a case that may result in compensation, but that is not generally available, so people just shrug and think well, it's a bad experience, I'm not going to go flying again, I'll have to change my lifestyle, but they don't pursue to legal action.

Just to complicate things infinitely further, in parallel with this, the Americans have introduced a law: the US Air Carriers Access Act, which has been around for long time, but they have now extended it to non-US carriers flying to and from the USA and to non-US carriers on code share flights with US carriers anywhere in the world, and all of us who traveled frequently will know that almost every flight in and around Europe now is on a code share with a US Carrier. And American law, being what it is, they have applied it to all of us in Europe, so we are now bound by US Law as well as European Law and although the intention is the same, which is to allow disabled people to travel comfortably and confidently, they've handled it in a very different way and they’ve put primary responsibility on the airline and not on the airport. And that means that in Europe some of the main carriers, who are doing a lot of flights to and from the US are being held responsible on the US Law, for something over which they have no legal responsibility in European Law. So there’s a really difficult area there.

There are also quite a lot of things in the US Law that go far beyond anything we have in Europe. The one that we always chose to make fun of, I’m afraid is that here in Europe, you are required to, or the air-carrier is required to carry assistance dogs, guide dogs, hearing dogs, assistance dogs for disabled people, the US Law extends to any kind of animal that has been trained to provide assistance to disabled people, and that includes monkeys, many of them. There is a famous case of the Vietnamese pot-bellied pig which was described as an emotional support pig by its American owner. Unfortunately after take off, the pig did what you would imagine a pig would do when it's frightened, all over the first-class cabin and so on, so in Europe we are very keen not to extend beyond dogs which, on the whole, are very well trained and able to cope with these things, but the point of mentioning is simply that there is an added complication for the airports and particularly for the air carriers.

So, what are the conclusions we can draw:

Passengers Rights Regulations have been very widely welcomed by disabled people, there was enormous excitement when the first of these regulations came in, people thought it was finally going to make an enormous difference to their ability to travel.

But in all honesty, they have not yet made the difference that was hoped for by the legislation, and that's, I think, causing a lot of disappointment.

Indeed, in some areas disabled people are saying that they think things are worse than they were before, because sometimes airports are working down to the legal minimum rather up to the quality standards. So what do we need to do? I think we suddenly need greater clarity in the way Regulations are drafted. There is too much scope for different interpretation in different Member States and, of course, that immediately destroys the goal of consistency.

So we need, above all, a more consistent and harmonized approach to implementation. We need clearer quality standards that can be enforced, although they are required to produce quality standards and, through the European Civil Aviation Conference, guidance on quality standards has been produced, they very enormously and its very difficult to have any kind of consistency there.

We also need more emphasis on high quality training of all staff concerned. As I've said the training there is more widely and training is absolutely the heart and the route of good practice. You can overcome a lot of the shortcomings of aircraft design, airport design, if you have staff who are trained to provide sensitive appropriate assistance. Without that there is a real problem. We also really need case law, because there isn't at the moment any clear legal framework which says: This is not acceptable, this has been tested in the courts and we know that this won't work“, so it would be very useful if we could build up some case law that gave guidance on how this works in practice. And let me just end by reminding you of something that Mr. Barroso said only a week or two back in his state of the Union Address: „ The European citizenship adds a set of rights and opportunities. The opportunity to freely cross borders. We must all stand up and preserve and develop these rights and opportunities.“

Thank you very much!