REGULATION (EEC) No 1192/69 OF THE COUNCIL of 26 June 1969 on common rules for the normalisation of the accounts of railway undertakings
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Articles 75 and 94 thereof;
Having regard to the Council Decision of 13 May 1965 (1) on the harmonisation of certain provisions affecting competition in transport by rail, road and inland waterway;
Having regard to the proposal from the Commission;
Having regard to the Opinion of the Assembly (2);
Having regard to the Opinion of the Economic and Social Committee(3);
Whereas one of the objectives of the common transport policy is to eliminate disparities which arise by reason of the imposition of financial burdens on, or the grant of benefits to, railway undertakings by public authorities, and which are consequently liable to cause substantial distortion in the conditions of competition;
Whereas it is appropriate for that purpose to take such action as will ensure the elimination of the effects of such financial burdens or benefits with a view to achieving equality of treatment for all modes of transport ; whereas for certain classes of financial burden or benefit, such action may consist in their early termination ; whereas, in respect of other classes, such action must be carried out as part of a process of normalisation of the accounts of railway undertakings, a feature of such normalisation being the payment of compensation in respect of the effects of such financial burdens or benefits;
Whereas a final settlement of the position as regards certain of the classes of financial burden or benefit to be covered by normalisation will have to be made in conjunction with the progressive harmonisation of the rules governing financial relations between railway undertakings and States as laid down in Article 8 of the Council Decision of 13 May 1965 on the harmonisation of certain provisions affecting competition in transport by rail, road and inland waterway ; whereas, for those classes of burden or benefit, it is therefore appropriate, pending a final settlement, to leave to each State the right to decide in each individual case whether normalisation should take place ; whereas, if normalisation is decided on, it should be carried out in accordance with the common rules laid down in this Regulation, in particular as regards the methods for calculating financial compensation;
Whereas, before any steps can be taken in pursuance of the normalisation of accounts to pay any compensation due as a result of that normalisation, it is necessary to determine the financial burdens borne or benefits enjoyed by railway undertakings by comparison with their position if they operated under the same conditions as other transport undertakings;
Whereas, in order to make such determination, the cases to which normalisation should be applied must be defined ; whereas all existing cases in the Member States should be covered, with the exception, on the one hand, of public service obligations, within the meaning of Council Regulation (EEC) No 1191/69 (4) of 26 June 1969 on action by Member States concerning the obligations inherent in the concept of a public service in transport by rail, road and inland waterway and, on the other hand, of disparities in the infrastructure and taxation burdens under the rules governing the three modes of transport-disparities which will in due course be eliminated under the measures proposed with regard to infrastructure charging and in conjunction with the adjustment of the general and specific taxation systems for transport; (1) OJ No 88, 24.5.1965, p. 1500/65. (2) OJ No C 135, 14.12.1968, p. 34. (3) OJ No C 118, 11.11.1968, p. 7. OJ No L 156, 28.6.1969, p. 1.
Whereas, since each case of normalisation has its own distinctive features, it is appropriate to define the scope of each such case and to lay down the principles of calculation to be applied for the purposes of determining the financial burdens imposed on, or benefits granted to, railway undertakings;
Whereas, in order to determine the amount of such burdens or benefits, it is necessary to compare the system applicable to railway undertakings with that applicable to private transport undertakings operating other modes of transport;
Whereas the financial burdens borne by railway undertakings are usually greater than the benefits they enjoy and furthermore such undertakings can easily supply the accounting data necessary to determine the amount of such burdens or benefits ; whereas it is therefore appropriate to allow such undertakings the initiative in the matter, it being left to the competent authorities of the Member States to examine in accordance with the provisions of this Regulation, and before fixing the amount of compensation, the figures on which the undertakings have based their applications ; whereas it is desirable to set a time limit within which such authorities must give a decision;
Whereas, since the payment of compensation is linked to the drawing up of the budgets both of the State or the competent authorities and of railway undertakings, it is appropriate to lay down specific provisions providing for the making of payments on the basis of estimates and the settlement of the oustanding balances;
Whereas, for the sake of clarity and in order to publicise appropriately the normalisation of accounts, it is desirable to lay down that amounts of compensation granted pursuant to the normalisation of accounts should appear in a table annexed to the annual accounts of railway undertakings;
Whereas it is desirable to ensure that appropriate means are made available by the Member States to transport undertakings in order to enable the latter to make representations concerning their interests with regard to individual decisions made by Member States in implementation of this Regulation;
Whereas the Commission must be able to obtain from Member States all relevant information concerning the application of this Regulation;
Whereas, since compensation paid pursuant to this Regulation is to be granted by Member States in accordance with common rules laid down by this Regulation, such compensation should be exempted from the preliminary information procedure laid down in Article 93 (3) of the Treaty establishing the European Economic Community;
Whereas the implementation of the common transport policy necessitates the immediate application of the provisions of this Regulation to the six national railway undertakings ; whereas, by reason of the position of other railway undertakings, with respect in particular to the conditions of competition in transport, and by reason of the need to implement the aforesaid common transport policy by stages, examination of the conditions for extending the application of this Regulation to other railway undertakings can be postponed for some years;
Whereas the process of normalisation does not relieve Member States of their own responsibility for eliminating, as far as possible, existing causes of distortion ; whereas, nevertheless, they must not by such action bring about a deterioration, in law or in fact, in the situation of railway staff, or impede or retard improvements in their living and working conditions;
HAS ADOPTED THIS REGULATION:
SECTION I Definitions and scope
Article 1
1. The accounts of railway undertakings shall be normalised in accordance with the common rules set out in this Regulation.
2. Any financial compensation resulting from the normalisation of accounts laid down in paragraph 1 shall be effected from 1 January 1971 and in accordance with the common procedures set out in this Regulation.
Article 2
1. Normalisation of the accounts of railway undertakings shall, within the meaning of this Regulation, consist in: (a) determination of the financial burdens borne or benefits enjoyed by railway undertakings, by reason of any provision laid down by law, regulation or administrative action, by comparison with their position if they operated under the same conditions as other transport undertakings;
(b) payment of compensation in respect of the burdens or benefits disclosed by the determination under (a).
2. Financial burdens resulting from any provision laid down by law, regulation or administrative action which embodies the results of negotiations between the two sides of industry shall not be treated as financial burdens for the purposes of this Regulation.
3. Normalisation of accounts within the meaning of this Regulation shall not apply to public service obligations imposed by Member States and covered by Regulation (EEC) No. 1191/69.
Article 3
1. This Regulation shall apply to the following railway undertakings: - Société nationale des chemins de fer belges (SNCB)/Nationale Maatschappij der Belgische Spoorwegen (NMBS);
- Deutsche Bundesbahn (DB);
- Société nationale des chemins de fer français (SNCF);
- Azienda autonoma delle Ferrovie dello Stato (FS);
- Société nationale des chemins de fer luxembourgeois (CFL);
- Naamloze Vennootschap Nederlandse Spoorwegen (NS).
2. The Commission shall, by 1 January 1973 at the latest, submit to the Council the measures it considers to be necessary for the purpose of extending the application of this Regulation to other undertakings effecting carriage by rail.
Article 4
1. Normalisation of accounts within the meaning of this Regulation shall be applied to the following classes of financial burden or benefit: (a) payments which railway undertakings are obliged to make but which, for the rest of the economy, including other modes of transport, are borne by the State (Class 1);
(b) expenditure of a social nature incurred by railway undertakings in respect of family allowances different from that which they would bear if they had to contribute on the same terms as other transport undertakings (Class II);
(c) payments in respect of retirement and other pensions borne by railway undertakings on terms different from those applicable to other transport undertakings (Class III);
(d) the bearing by railway undertakings of the costs of crossing facilities (Class IV).
2. The following classes of financial burden or benefit in existence at the time of entry into force of this Regulation shall be terminated by 1 January 1971 at the latest: (a) the obligation to recruit staff surplus to the requirements of the undertaking (Class V);
(b) backdated increases in wages and salaries imposed by the Government of a Member State, except where such increases are made for the sole purpose of bringing the wages and salaries paid by railway undertakings into line with the wages and salaries paid elsewhere in the transport sector (Class VI);
(c) delay imposed by the competent authorities with regard to renewals and maintenance (Class VII).
3. The following class of financial burden or benefit in existence at the time of the entry into force of this Regulation shall be abolished by 1 January 1973 at the latest:
financial burdens in respect of reconstruction or replacement arising out of war damage which are borne by railway undertakings but which should have been assumed by the State (Class VIII);
the capital and interest burden of loans granted under this head shall be the subject of normalisation of accounts within the meaning of this Regulation until liability ceases.
4. The following classes of financial burden or benefit in existence at the time of the entry into force of this Regulation may be the subject of normalisation of accounts within the meaning of this Regulation: (a) the obligation to retain staff surplus to the requirements of the undertaking (Class IX);
(b) measures benefiting staff, in recognition of certain services rendered to their country, imposed on railway undertakings by the State on terms different from those applicable to other transport undertakings (Class X);
(c) allowances payable to staff imposed on railway undertakings and not on other transport undertakings (Class XI);
(d) expenditure of a social character incurred by railway undertakings, in respect in particular of medical treatment, different from that which they would bear if they had to contribute on the same basis as other transport undertakings (Class XII);
(e) financial burdens devolving upon railway undertakings in consequence of their being required by the State to keep in operation works or other establishments in circumstances inconsistent with operation on a commercial basis (Class XIII);
(f) conditions imposed in respect of the placing of public contracts for works and supplies (Class XIV).
The following class of financial burden or benefit may also be the subject of normalisation of accounts within the meaning of this Regulation:
capital and interest burdens borne as a result of lack of normalisation in the past (Class XV).
A final settlement of the position as regards Classes IX to XV shall be adopted by the Council by not later than the time when measures are adopted for the implementation of Article 8 of the Council Decision of 13 May 1965 on the harmonisation of certain provisions affecting competition in transport by rail, road and inland waterway. In the meantime, Member States shall endeavour to remove the causes of those financial burdens or benefits.
SECTION II Common rules for normalisation and compensation
Article 5
1. Any financial burden upon, or benefit for, railway undertakings which shall or may be the subject of normalisation of accounts shall be determined in accordance with the provisions of the Annexes to this Regulation. The Annexes shall form an integral part of this Regulation.
2. Where, for any class to be normalised, the conditions applicable to railway undertakings have to be compared with those applicable elsewhere in the transport sector, the comparison shall be only with private undertakings.
Article 6
1. The gross amount of compensation shall be determined for each class of normalisation by applying the principles of calculation specified in the Annex for the relevant class.
The net amount shall be obtained by taking into account only once any item which appears more than once in the calculation of the gross amounts for the various classes.
2. Where the calculation made in accordance with the provisions laid down in the Annexes for each class of normalisation discloses a financial burden for the railway undertaking, the latter shall be entitled to an equivalent sum by way of compensation from the public authorities.
Where such a calculation discloses a benefit for the railway undertaking, the equivalent sum by way of compensation shall be due from the railway undertaking to the public authorities.
Article 7
1. Every year railway undertakings shall submit to the competent authorities applications for normalisation in accordance with the provisions of this Regulation.
2. Such applications shall consist of: (a) data relating to the following financial year, calculated on the basis of the provisions laid down by law, regulation or administrative action in force at the time the application is made ; and
(b) the data needed for adjustment of the amounts paid provisionally in respect of the financial year for which final results are known.
3. Such application, which shall be made in good time to allow the public authorities to make the necessary provision in the budget, shall contain all relevant supporting information concerning in particular: (a) the financial burdens or benefits for each class of normalisation;
(b) the method of calculation applied for each class under consideration;
(c) the gross and net amounts referred to in Article 6 (1) for each class under consideration. The estimates referred to in paragraph 2 (a) shall be calculated on the basis of the figures for the last period for which final results are known, account being taken of any changes which may have occurred within each class of normalisation up to the time when the application was made.
Article 8
1. The competent authorities of the Member States shall examine the data upon which the application by the railway undertaking concerned is based.
2. After giving the undertaking concerned an opportunity to submit its comments, the competent authorities of the Member States may: - adjust the amounts of the compensation and alter other items in the application, if the provisions of this Regulation have not been complied with;
- include in the application other financial burdens or benefits resulting from any of the classes listed in Article 4.
3. The competent authorities shall determine, in accordance with the provisions laid down in this Regulation, the estimated amount of the compensation for the following financial year, and the final amount of the compensation for the last preceding financial year for which final results are known. Their decision shall include details of the calculation of such amounts.
4. The competent authorities shall notify the railway undertaking of their decision six months at the latest after receipt of the application.
If the competent authorities fail to give a decision within that period, the undertaking's application shall be deemed to be provisionally accepted.
Article 9
Member States shall pay the estimated amount of compensation determined pursuant to Article 8 in the course of the financial year for which the estimate was made.
In the course of that financial year, Member States shall pay or collect the balance of the compensation due by reason of the difference between the final amount of the compensation for the last preceding financial year for which final results are available and the estimated amounts already paid.
Article 10
1. The amount of the compensation paid in respect of each class of normalisation shall be shown in a table annexed to the annual accounts of the railway undertaking. That table shall show separately amounts of compensation received on an estimated basis, and amounts received or paid in settlement of the outstanding balance as provided in Article 9.
The table shall also show, in respect of each public service obligation, the amounts of compensation granted under Regulation (EEC) No. 1191/69.
2. The total amount of compensation received pursuant to the normalisation of accounts and of compensation received in respect of public service obligations shall, depending on the rules in force in the individual States, be entered either in the trading account or in the profit and loss account of the railway undertaking concerned.
Article 11
Decisions of the competent authorities of the Member States taken in pursuance of the provisions of this Regulation shall state the reasons on which they are based and shall receive official publication.
Article 12
Member States shall ensure that railway undertakings, in their capacity as railway undertakings, are given the opportunity to make representations concerning their interests, by appropriate means, with regard to decisions taken pursuant to this Regulation.
SECTION III Final provisions
Article 13
1. The Commission may request Member States to supply all relevant information concerning the application of this Regulation. Whenever it considers it necessary, the Commission shall consult with the Member States concerned.
2. Compensation paid pursuant to this Regulation shall be exempted from the preliminary information procedure laid down in Article 93 (3) of the Treaty establishing the European Economic Community.
Member States shall promptly forward to the Commission details of amounts actually paid as compensation in respect of each class of financial burden or benefit covered by this Regulation.
Article 14
1. Member States shall, after consulting the Commission and in good time, adopt such laws, regulations or administrative provisions as may be necessary for the implementation of this Regulation.
2. Where a Member State so requests, or where the Commission considers it appropriate, the Commission shall consult with the Member States concerned upon the proposed terms of the measures referred to in paragraph 1.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 26 June 1969.