School transport: “Not all communities are aware of their obligations”

In decision of December 23the Council of State rejected the appeal of the agglomeration of Rochefort: the judge of the CAA of Bordeaux orders him to modify the organization of a transport line, reclassified as a school transport line, replacing buses with coaches. Should we conclude that, when a transport line serves schools, the users of this line must travel seated?

It seems to me that stopping the AAC is logical, and its conclusions do not surprise me: from the moment the line is mainly used by people under 18, it is assimilated to a public transport line for children. In this case, the principle is that the children must be seated and belted.

This judgment should be talked about, because all the AOM were not necessarily aware of their obligations. It is indeed an important decision, the first in my opinion that is significant on this subject, even if the applicable texts were clear.

But how do you determine if this line mainly carries children?

That’s a very good question. L’decree of July 2, 1982 relating to public transport of people specifies that “by “public transport of children”, we mean the public transport of people […] organized principally for persons under the age of 18, whatever the reason for the trip”. And according to thearticle R. 3111-5 of the transport code“school transport is a regular public road transport service created to ensure principally for pupils the service of educational establishments”.

These texts do not say exactly what this covers. It’s up to the judge to say, but it seems to me that thejudgment of the Bordeaux CAA of April 7, 2022relating to the business of this agglomeration, is one of the very first decisions that we have, if not the first.

So this criterion is not made explicit. Nevertheless, one can assume, and this is what this judgment demonstrates, that the judge will have recourse to a range of clues. Several pieces of information will help him. Are schools served? Does the line operate mainly or exclusively on weekdays, and not on weekends? Similarly, does it operate exclusively during school hours? In addition, in a very statistical and very concrete way, the judge will ask who mainly frequents this line. Are they more children or ordinary users? All these indices make it possible to determine whether we are dealing with a line of transport which must be considered as school or a regular line of transport.

This is exactly what the judge did in this judgment: the line in question only operates on weekdays and outside school vacation periods; it serves four educational institutions; in the public service delegation contract and in the information documents intended for users, it is described as a “school line” by the transport organizing authority; it is organized primarily for people under 18 years of age.

And have no impact, specified the judge, the fact that this line is accessible to all passengers without distinction, that there is no specific pricing for students and that there is also a line dedicated to school pick-up for children under 12 years old.

But won’t this solution lead to lace analyses, on a case-by-case basis?

I do think that the judge’s assessment is very concrete on this subject, and that he will not only analyze, in a very legal and theoretical way, the way in which the line is qualified, but also look very concretely, at the whole of the line, who uses it and which places it serves.

So indeed, it is possible that he finds himself seized of “grey zones”, of really ambiguous cases, with almost similar proportions between the children who use the line to go to school and the other regular users, or cases where the line in question will continue to run during school holidays. In this judgment, things were much clearer, which facilitated the judge’s assessment.

Since then, what has changed in the mobility orientation law?

This judgment was in fact delivered in relation to a situation prior to the OOM. But this law, ultimately, does not fundamentally change things on the obligation to transport children seated and belted. It was already the case before. L’article R.411-23-2 of the highway code and thedecree of July 2, 1982 stipulate that the transport of children is in principle seated and belted. It is only exceptionally that standing transport may be authorized, under very restrictive conditions.

The LOM has just clarified things: “As soon as a regular public passenger road transport service is mainly devoted to the transport of pupils, it meets the definition of school transport and is subject to the provisions applicable to public transport for ‘children. This does not change the concrete obligations of carriers.

She also did not provide any details on the criterion for defining public transport for children, so it is always up to the judge to define and identify this criterion, on a case-by-case basis. To my knowledge, the Council of State has not yet ruled, but it seems to me all the same that the judgment of the CAA seems to me legally founded and logical in relation to the application of the texts.

To your knowledge, have other communities been in the same situation as the agglomeration of Rochefort? Is this a subject that is rising in the communities?

Yes, this is quite a subject of concern currently, and has been for several years, for AOMs who are aware of their obligations to transport children seated and belted. It is even quite surprising that there is so little case law on the importance of the subject.

The AOM are aware of these obligations, which are complicated to implement operationally and financially, because it is sometimes necessary to replace large fleets of vehicles with coaches, not class 2 which allow standing transport, but class 3, with everyone seated. This also raises important liability issues for them. On September 16, 2021, in the urban community of Laval, a bus carrying 48 children went off the road: this accident raised the question of the liability of the carrier, but also of the AOM.

For the moment, to my knowledge, there has been no conviction, but potentially, we are not at all protected that one day, administrative or even criminal liability may be incurred, in the event of accident and injured students because they were transported standing.

So what would you advise communities to do?

My advice is very simple, although I know it is much easier said than done: it is urgent to comply with legal and regulatory obligations. I am well aware that this has a significant cost, but whenever a transport line is used mainly by children, the buses must be replaced by class 3 coaches. All the organizing authorities are concerned.

This all the same goes in the direction of greater safety for the children, and it is for the best, even if it will pose important questions of organization and financing for the communities.

This article is related to the file

School transport: “Not all communities are aware of their obligations”