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Key facts of the case:
  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. 
Results (sanctions) and key consequences of the case:
On the basis of these reasons, I propose answering the preliminary questions referred by the Verwaltungsgerichtshof as follows:
Question 1
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.
Question 2
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.