Comparison across countries of “right to access to transport”

The purpose of the work done (available as Deliverable 2.1. of the project) is to conduct a comparative law study on the right of access to transport with a focus on transport law in different legal systems. More precisely, for each step of the work, the report will distinguish between French laws and some other national laws. So, the work is focused on transport law in different legal systems. Indeed, the report includes a review of domestic, international and Community law that is aimed to answer the following questions:

What’s the definition of “the right to access to transport”?

How do the judges appreciate and interpret this right?

A comparative study of the laws concerning the right of access to transport raises questions about the definition of the right of access to transport and the way in which it could be invoked before a judge.

The report is divided into two sections. The first step focuses on French case, which is mentioned as an example in the SUaaVE DoA because of its new Mobility Law. From the analysis of the French case as a starting point for the discussion, the second part of the study will be devoted to comparative law including the same legal issues in regard to other European countries, namely, Germany, Italy, and Spain, and the USA. It is in this context, it will be useful to start by determining whether the right to access to transport is an omnipresent legal concept, and whether its meaning is common and shared. Then its enforceability, invocability and effectiveness must be questioned. Finally, it must be determined whether the introduction of CAV is likely to have an impact on the characteristics of this potential right, especially by investigating the legal issues related to the right to access to transport with the implementation of CAV in future transport systems provided by the different public policies of the countries studied.

The analysis shows that there is no general “right to transport” constituting a fundamental right as a “right-credential”, which citizens may individually request to be implemented and whose disregard would be sanctioned.

There is no general (i.e. universal) right to transport guaranteed in Union or international laws for individuals, but consecration of different rights of the passenger for certain modes of transport (as, for example, the right to availability of tickets and reservations, the carrier’s liability towards the passenger, rights in case of delay, cancellation…), with the notable and important exception of an effective “right to transport” for persons with reduced mobility or a disability, understood as a guarantee a minima of access to existing transport services or equivalent offers.

In addition, emphasis should be placed on the “right to information” component which is inherent in the right to transport in several legal regimes.

At the national level, the right to transport is raised to a legal matter of discussion in the different countries studied but is not enshrined in every system or protected at the same level. There is a disparity in its application depending on the legal regime to which it is subject to in each country. The effectiveness of a right to transport can be widely discussed. In some countries, it has not been established as a right but is invoked in public policies, while in others, even if it is expressly included in the law or indirectly promoted, it does not seem to be accompanied by the legal means to make it effective and applicable for every citizen. In each legal system, the right to transport is more like an objective recognised by legislation, a directive that needs to be implemented by public policies.

However, the legal effectiveness of a right of access to transport for people with reduced mobility and disabilities seems to be a common thread in the different legal regimes studied, including USA. From this point of view, it is undeniable that the introduction of the CAV is unanimously apprehended as constituting a progress in the implementation of a right to transport.

Although no legal system expressly provides that the deployment of CAV must be such as to ensure the effectiveness of the right to transport on its own, they all point out that this new means of transport is likely to improve the effectiveness of this right. All texts reviewed highlight that CAV aims to provide solutions to the real mobility problems of citizens, especially of:

– elderly people

– people with reduced mobility and disabilities

– inhabitants of sparsely populated or landlocked territories

The various public policies emphasize the fact that accessibility will be improved, not only insofar as the transport offer will be more diversified (‘on-demand’ transport in particular is very often targeted), but also adapted to the person of the user and their possible physical, cultural, medical, social and intellectual constraints.

In this respect, it should be noted that the introduction of the CAV is legally disruptive in that it implies a rethinking of the organisation of transport systems, transcending traditional legal categories.

From this point of view, all the legal systems examined highlight the fact that there is a shift from a right to transport to a right to mobility, which would de facto guarantee not a “right for all” but “a right for everyone”. This shift from the “transport” to the “mobility” strengthens real, not just formal, equality between individuals, in link with the enhancing of freedom of each individual. To do so, however, the use of the CAV will involve the processing of personal data. Hence, the apparent reinforcement of one right may have the capacity to affect other rights which requires a balancing of interests. So the CAV implies the reconciliation of different rights which must be effectively carried out and requires compliance with other regulations protecting other rights, in particular with regard to the GDPR, that must be effective. Probably the most problematic legal issue is the use of data, especially personal data which can be very sensitive. It is therefore probably appropriate to consider that legal requirements should be integrated into the design process. This issue will be investigated as part of further work in the project.