# CE2006289EN.01003001.xml

| 28.11.2006 | EN | Official Journal of the European Union | CE 289/30 |
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28.11.2006

EN

Official Journal of the European Union

CE 289/30

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COMMON POSITION (EC) No 20/2006

COMMON POSITION

adopted by the Council on 24 July 2006

with a view to adopting Directive 2006/.../EC of the European Parliament and of the Council of ... amending Council Directive 91/440/EEC on the development of the Community's railways and Directive 2001/14/EC of the European Parliament and of the Council on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure

(2006/C 289 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 71 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

1

Having regard to the opinion of the Committee of the Regions (2),

2

Acting in accordance with the procedure referred to in Article 251 of the Treaty (3),

3

Whereas:

| (1) | Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (4) was designed to facilitate the adaptation of the Community's railways to the requirements of the single market and to improve their efficiency. |
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(1)

Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways (4) was designed to facilitate the adaptation of the Community's railways to the requirements of the single market and to improve their efficiency.

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| (2) | Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (5) concerns the principles and procedures to be applied with regard to the setting and charging of railway infrastructure charges and the allocation of railway infrastructure capacity. |
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(2)

Directive 2001/14/EC of the European Parliament and of the Council of 26 February 2001 on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure (5) concerns the principles and procedures to be applied with regard to the setting and charging of railway infrastructure charges and the allocation of railway infrastructure capacity.

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| (3) | In its White Paper European transport policy for 2010: time to decide, the Commission announced its intention to continue building the internal market in rail services by proposing to open up the market in international passenger services. |
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(3)

In its White Paper European transport policy for 2010: time to decide, the Commission announced its intention to continue building the internal market in rail services by proposing to open up the market in international passenger services.

| (4) | The aim of this Directive is to address the opening of the market for international rail passenger services within the Community, and it should therefore not concern services between a Member State and a third country. In addition, Member States should be able to exclude from the scope of this Directive services transiting the Community. |
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(4)

The aim of this Directive is to address the opening of the market for international rail passenger services within the Community, and it should therefore not concern services between a Member State and a third country. In addition, Member States should be able to exclude from the scope of this Directive services transiting the Community.

| (5) | International rail services currently present a very contrasting picture. Long-distance services (for instance night trains) are in difficulty and several of them have recently been withdrawn by the railway undertakings operating them in order to limit losses. The market for international high-speed services, on the other hand, has seen a sharp increase in traffic and will continue its vigorous development with the doubling and interconnection of the trans-European high-speed network by 2010. Nevertheless, there is strong competitive pressure from low-cost airlines in both cases. It is therefore essential to stimulate new initiatives by promoting competition between railway undertakings. |
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(5)

International rail services currently present a very contrasting picture. Long-distance services (for instance night trains) are in difficulty and several of them have recently been withdrawn by the railway undertakings operating them in order to limit losses. The market for international high-speed services, on the other hand, has seen a sharp increase in traffic and will continue its vigorous development with the doubling and interconnection of the trans-European high-speed network by 2010. Nevertheless, there is strong competitive pressure from low-cost airlines in both cases. It is therefore essential to stimulate new initiatives by promoting competition between railway undertakings.

| (6) | It is not possible to open up the market in international passenger services without detailed provisions on infrastructure access, substantial progress on interoperability and a strict framework for rail safety at national and European level. All of these elements are now in place following the transposition of Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC (6), Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 91/440/EEC (7), Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC (8), Directive 2001/14/EC, and Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways (9). It is necessary for this new regulatory framework to be supported by established, consolidated practice by the proposed date for opening up the market for international passenger services. This will require a certain time. The target date for opening up the market should therefore be 1 January 2010. |
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(6)

It is not possible to open up the market in international passenger services without detailed provisions on infrastructure access, substantial progress on interoperability and a strict framework for rail safety at national and European level. All of these elements are now in place following the transposition of Directive 2001/12/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 91/440/EEC (6), Directive 2004/51/EC of the European Parliament and of the Council of 29 April 2004 amending Council Directive 91/440/EEC (7), Directive 2001/13/EC of the European Parliament and of the Council of 26 February 2001 amending Council Directive 95/18/EC (8), Directive 2001/14/EC, and Directive 2004/49/EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways (9). It is necessary for this new regulatory framework to be supported by established, consolidated practice by the proposed date for opening up the market for international passenger services. This will require a certain time. The target date for opening up the market should therefore be 1 January 2010.

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| (7) | The number of railway services without intermediate stops is very limited. In the case of journeys with intermediate stops, it is essential to authorise new market entrants to pick up and set down passengers along the route in order to ensure that such operations have a realistic chance to be economically viable and to avoid placing potential competitors at a disadvantage to existing operators, which have the right to pick up and set down passengers along the route. This right should be without prejudice to Community and national regulations concerning competition policy. |
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(7)

The number of railway services without intermediate stops is very limited. In the case of journeys with intermediate stops, it is essential to authorise new market entrants to pick up and set down passengers along the route in order to ensure that such operations have a realistic chance to be economically viable and to avoid placing potential competitors at a disadvantage to existing operators, which have the right to pick up and set down passengers along the route. This right should be without prejudice to Community and national regulations concerning competition policy.

| (8) | The introduction of new, open-access, international services with intermediate stops should not be used to bring about the opening of the market for domestic passenger services, but should merely be focused on stops that are ancillary to the international route. On that basis, their introduction should concern services whose principal purpose is to carry passengers travelling on an international journey. The determination of whether that is the service's principal purpose should take into account criteria such as the proportion of turnover, and of volume, derived from transport of domestic or international passengers, and the length of the service. This determination should be made by the respective national regulatory body at the request of an interested party. |
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(8)

The introduction of new, open-access, international services with intermediate stops should not be used to bring about the opening of the market for domestic passenger services, but should merely be focused on stops that are ancillary to the international route. On that basis, their introduction should concern services whose principal purpose is to carry passengers travelling on an international journey. The determination of whether that is the service's principal purpose should take into account criteria such as the proportion of turnover, and of volume, derived from transport of domestic or international passengers, and the length of the service. This determination should be made by the respective national regulatory body at the request of an interested party.

| (9) | Council Regulation (EEC) No 1191/69 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 (10) authorises Member States and local authorities to award public service contracts. These contracts may contain exclusive rights to operate certain services. It is therefore necessary to ensure that the provisions of that Regulation are consistent with the principle of opening up international passenger services to competition. |
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(9)

Council Regulation (EEC) No 1191/69 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 (10) authorises Member States and local authorities to award public service contracts. These contracts may contain exclusive rights to operate certain services. It is therefore necessary to ensure that the provisions of that Regulation are consistent with the principle of opening up international passenger services to competition.

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| (10) | Opening up international passenger services, which include the right to pick up passengers at any station located on the route of an international service and to set them down at another, including stations located in the same Member State, to competition may have implications for the organisation and financing of rail passenger services provided under a public service contract. Member States should have the possibility to limit the right of access to the market where this right would compromise the economic equilibrium of these public service contracts and where approval is given by the relevant regulatory body referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis, following a request from the competent authorities that awarded the public service contract. |
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(10)

Opening up international passenger services, which include the right to pick up passengers at any station located on the route of an international service and to set them down at another, including stations located in the same Member State, to competition may have implications for the organisation and financing of rail passenger services provided under a public service contract. Member States should have the possibility to limit the right of access to the market where this right would compromise the economic equilibrium of these public service contracts and where approval is given by the relevant regulatory body referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis, following a request from the competent authorities that awarded the public service contract.

| (11) | Some Member States have already moved towards opening up the market for rail passenger services by transparent, open competitive tendering for the provision of certain such services. They should not have to provide full open access to international passenger services, since this competition for the right to use certain rail routes has involved a sufficient test of the market value of running those services. |
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(11)

Some Member States have already moved towards opening up the market for rail passenger services by transparent, open competitive tendering for the provision of certain such services. They should not have to provide full open access to international passenger services, since this competition for the right to use certain rail routes has involved a sufficient test of the market value of running those services.

| (12) | The assessment of whether the economic equilibrium of the public service contract could be compromised should take into account pre-determined criteria such as the impact on the profitability of any services which are included in a public service contract, including consequential impacts on the net cost to the competent public authority that awarded the contract, passenger demand, ticket pricing, ticketing arrangements, location and number of stops on both sides of the border and timing and frequency of the proposed new service. Respecting such an assessment and the decision of the relevant regulatory body, Member States might authorise, modify or deny the right of access for the international passenger service sought, including the levying of a charge on the operator of a new international passenger service, in line with the economic analysis and in accordance with Community law and the principles of equality and non-discrimination. |
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(12)

The assessment of whether the economic equilibrium of the public service contract could be compromised should take into account pre-determined criteria such as the impact on the profitability of any services which are included in a public service contract, including consequential impacts on the net cost to the competent public authority that awarded the contract, passenger demand, ticket pricing, ticketing arrangements, location and number of stops on both sides of the border and timing and frequency of the proposed new service. Respecting such an assessment and the decision of the relevant regulatory body, Member States might authorise, modify or deny the right of access for the international passenger service sought, including the levying of a charge on the operator of a new international passenger service, in line with the economic analysis and in accordance with Community law and the principles of equality and non-discrimination.

| (13) | In order to ensure the financing of public service obligations, it is appropriate to allow Member States to raise a levy on passenger services in their territory in accordance with Community law. |
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(13)

In order to ensure the financing of public service obligations, it is appropriate to allow Member States to raise a levy on passenger services in their territory in accordance with Community law.

| (14) | The regulatory body should function in a way which avoids any conflict of interests and any possible involvement in the award of the public service contract under consideration. In particular, if for organisational or legal purposes it is closely linked to the competent authority involved in the award of the public service contract under consideration, its functional independence should be ensured. The competence of the regulatory body should be extended to allow the assessment of the purpose of an international service and, where appropriate, the potential economic impact on existing public service contracts. |
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(14)

The regulatory body should function in a way which avoids any conflict of interests and any possible involvement in the award of the public service contract under consideration. In particular, if for organisational or legal purposes it is closely linked to the competent authority involved in the award of the public service contract under consideration, its functional independence should be ensured. The competence of the regulatory body should be extended to allow the assessment of the purpose of an international service and, where appropriate, the potential economic impact on existing public service contracts.

| (15) | This Directive constitutes a further phase of rail market opening. Some Member States have already opened up the market for international passenger services on their territory. In this context, this Directive should not be understood as creating obligations for those Member States to grant, before 1 January 2010, access rights to railway undertakings licensed in a Member State where similar rights are not granted. |
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(15)

This Directive constitutes a further phase of rail market opening. Some Member States have already opened up the market for international passenger services on their territory. In this context, this Directive should not be understood as creating obligations for those Member States to grant, before 1 January 2010, access rights to railway undertakings licensed in a Member State where similar rights are not granted.

| (16) | The national regulatory bodies should, on the basis of Article 31 of Directive 2001/14/EC, exchange information and, where relevant in individual cases, coordinate the principles and practice of assessing whether the economic equilibrium of a public service contract is compromised. They should progressively develop guidelines based on their experience. |
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(16)

The national regulatory bodies should, on the basis of Article 31 of Directive 2001/14/EC, exchange information and, where relevant in individual cases, coordinate the principles and practice of assessing whether the economic equilibrium of a public service contract is compromised. They should progressively develop guidelines based on their experience.

| (17) | The application of this Directive should be evaluated on the basis of a report to be presented by the Commission two years after the date of opening up the market in international passenger services. |
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(17)

The application of this Directive should be evaluated on the basis of a report to be presented by the Commission two years after the date of opening up the market in international passenger services.

| (18) | A Member State which has no railway system, and no immediate prospect of having one, would be under a disproportionate and pointless obligation if it had to transpose and implement Directives 91/440/EEC and 2001/14/EC. Therefore, such a Member State should be exempted, for as long as it has no railway system, from the obligation to transpose and implement these Directives. |
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(18)

A Member State which has no railway system, and no immediate prospect of having one, would be under a disproportionate and pointless obligation if it had to transpose and implement Directives 91/440/EEC and 2001/14/EC. Therefore, such a Member State should be exempted, for as long as it has no railway system, from the obligation to transpose and implement these Directives.

| (19) | Since the objective of this Directive, namely the development of the Community's railways, cannot be sufficiently achieved by the Member States, given the need to ensure fair and non-discriminatory conditions of access to infrastructure and to take account of the obviously international dimension of the way in which important parts of the rail networks operate, as well as the need for coordinated transnational action, and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective. |
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(19)

Since the objective of this Directive, namely the development of the Community's railways, cannot be sufficiently achieved by the Member States, given the need to ensure fair and non-discriminatory conditions of access to infrastructure and to take account of the obviously international dimension of the way in which important parts of the rail networks operate, as well as the need for coordinated transnational action, and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality set out in that Article, this Directive does not go beyond what is necessary in order to achieve this objective.

| (20) | In accordance with point 34 of the Interinstitutional agreement on better law-making (11), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and make them public. |
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(20)

In accordance with point 34 of the Interinstitutional agreement on better law-making (11), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and make them public.

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| (21) | Directives 91/440/EEC and 2001/14/EC should therefore be amended accordingly, |
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(21)

Directives 91/440/EEC and 2001/14/EC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 91/440/EEC is hereby amended as follows:

| 1) | the following paragraph shall be added to Article 2:
  ‘4.   Member States may exclude from the scope of this Directive any railway service carried out in transit through the Community and which begins and ends outside the Community territory.’; |
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1)

the following paragraph shall be added to Article 2:

‘4.   Member States may exclude from the scope of this Directive any railway service carried out in transit through the Community and which begins and ends outside the Community territory.’;

| 2) | the fourth indent of Article 3 shall be deleted; |
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2)

the fourth indent of Article 3 shall be deleted;

| 3) | the following indent shall be inserted in Article 3 after the fifth indent:






  ‘– | “international passenger service” shall mean a passenger service where the train crosses at least one border of a Member State and where the principal purpose of the service is to carry passengers between stations located in different Member States; the train may be joined and/or split, and the different sections may have different origins and destinations, provided that all carriages cross at least one border’; |
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3)

the following indent shall be inserted in Article 3 after the fifth indent:

‘–

“international passenger service” shall mean a passenger service where the train crosses at least one border of a Member State and where the principal purpose of the service is to carry passengers between stations located in different Member States; the train may be joined and/or split, and the different sections may have different origins and destinations, provided that all carriages cross at least one border’;

| 4) | the following indent shall be inserted in Article 3 after the sixth indent:






  ‘– | “transit” shall mean the crossing of the Community territory which is carried out without loading or unloading of goods, and/or without picking up of passengers nor setting them down in the Community territory.’; |
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4)

the following indent shall be inserted in Article 3 after the sixth indent:

‘–

“transit” shall mean the crossing of the Community territory which is carried out without loading or unloading of goods, and/or without picking up of passengers nor setting them down in the Community territory.’;

| 5) | the first indent of Article 5(3) shall be deleted; |
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5)

the first indent of Article 5(3) shall be deleted;

| 6) | the phrase ‘and international groupings’ shall be deleted in Article 8(1); |
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6)

the phrase ‘and international groupings’ shall be deleted in Article 8(1);

| 7) | paragraph (1) of Article 10 shall be deleted; |
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7)

paragraph (1) of Article 10 shall be deleted;

| 8) | the following paragraphs shall be inserted in Article 10:
  ‘3a.   Railway undertakings within the scope of Article 2 shall, by 1 January 2010, be granted the right of access to the infrastructure in all Member States for the purpose of operating an international passenger service. Railway undertakings shall, in the course of an international passenger service, have the right to pick up passengers at any station located on the international route and set them down at another, including stations located in the same Member State.
  The right of access to the infrastructure of the Member States for which the share of international carriage of passengers by train constitutes more than half of the passenger turnover of railway undertakings in that Member State shall be granted by 1 January 2012.
  Whether the principal purpose of the service is to carry passengers between stations located in different Member States shall be determined by the relevant regulatory body or bodies referred to in Article 30 of Directive 2001/14/EC following a request from the relevant competent authorities and/or interested railway undertakings.
  3b.   Member States may limit the right of access defined in paragraph 3a on services between a place of departure and a destination which are covered by one or more public service contracts conforming to the Community legislation in force. Such limitation may not have the effect of restricting the right to pick up passengers at any station located on the route of an international service and to set them down at another, including stations located in the same Member State, except where the exercise of this right would compromise the economic equilibrium of a public service contract.
  Whether the economic equilibrium would be compromised shall be determined by the relevant regulatory body or bodies referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis and based on pre-determined criteria, following a request from:






  — | the competent authority or competent authorities that awarded the public service contract; |
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8)

the following paragraphs shall be inserted in Article 10:

‘3a.   Railway undertakings within the scope of Article 2 shall, by 1 January 2010, be granted the right of access to the infrastructure in all Member States for the purpose of operating an international passenger service. Railway undertakings shall, in the course of an international passenger service, have the right to pick up passengers at any station located on the international route and set them down at another, including stations located in the same Member State.

The right of access to the infrastructure of the Member States for which the share of international carriage of passengers by train constitutes more than half of the passenger turnover of railway undertakings in that Member State shall be granted by 1 January 2012.

Whether the principal purpose of the service is to carry passengers between stations located in different Member States shall be determined by the relevant regulatory body or bodies referred to in Article 30 of Directive 2001/14/EC following a request from the relevant competent authorities and/or interested railway undertakings.

3b.   Member States may limit the right of access defined in paragraph 3a on services between a place of departure and a destination which are covered by one or more public service contracts conforming to the Community legislation in force. Such limitation may not have the effect of restricting the right to pick up passengers at any station located on the route of an international service and to set them down at another, including stations located in the same Member State, except where the exercise of this right would compromise the economic equilibrium of a public service contract.

Whether the economic equilibrium would be compromised shall be determined by the relevant regulatory body or bodies referred to in Article 30 of Directive 2001/14/EC on the basis of an objective economic analysis and based on pre-determined criteria, following a request from:

—

the competent authority or competent authorities that awarded the public service contract;

| — | any other interested competent authority with the right to limit access under this Article; |
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—

any other interested competent authority with the right to limit access under this Article;

| — | the infrastructure manager, or |
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—

the infrastructure manager, or

| — | the railway undertaking performing the public service contract. |
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—

the railway undertaking performing the public service contract.

The competent authorities and the railway undertakings providing the public services shall provide the relevant regulatory body or bodies with the information reasonably required to reach a decision. The regulatory body shall consider the information provided, consulting all the relevant parties as appropriate, and shall inform the relevant parties of its reasoned decision within a pre-determined, reasonable time, and, in any case, within two months of receipt of all relevant information. The regulatory body shall give the grounds for its decision and specify the time period within which, and the conditions under which

| — | the relevant competent authority or competent authorities; |
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—

the relevant competent authority or competent authorities;

| — | the infrastructure manager; |
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—

the infrastructure manager;

| — | the railway undertaking performing the public service contract, or |
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—

the railway undertaking performing the public service contract, or

| — | the railway undertaking seeking access, |
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—

the railway undertaking seeking access,

may request a re-consideration of the decision.

3c.   Member States may also limit the right to pick up and set down passengers at stations within the same Member State on the route of an international passenger service where an exclusive right to convey passengers between those stations has been granted under a concession contract awarded before... on the basis of a fair competitive tendering procedure and in accordance with the relevant principles of Community law. This limitation may continue for the original duration of the contract, or 15 years, whichever is the shorter.

3d.   The provisions of this Directive shall not require a Member State to grant, before 1 January 2010, the right of access referred to in paragraph 3a to railway undertakings and their directly or indirectly controlled subsidiaries, licensed in a Member State where access rights of a similar nature are not granted.

3e.   Member States shall take the necessary measures to ensure that the decisions referred to in paragraphs 3b, 3c and 3d are subject to judicial review.

3f.   Without prejudice to paragraph 3b, Member States may, under the conditions laid down in this Article, authorise relevant authorities to raise a levy on all rail passenger transport services on their territory in order to contribute to the financing of public service obligation compensation in the framework of public services contracts concluded in accordance with Community law.

In conformity with Community law, the compensation referred to in the first subparagraph may not exceed what is necessary to cover all or part of the cost incurred in the discharge of public service obligations taking into account the relevant receipts and a reasonable profit for discharging those obligations.

The levy shall be raised in accordance with Community law, in particular respecting the principles of fairness, transparency, non-discrimination and proportionality, in particular between the price of the service and the level of the levy. The obligation to contribute to the financing of the public service obligations' compensation shall not endanger the economic viability of the international passenger service.

The relevant authorities shall keep the information necessary to ensure that the origin of the levies and their use can be traced. Member States shall provide the Commission with this information.’;

| 9) | Article 10(8) shall be replaced by the following:
  ‘8.   By 1 January 2009, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions a report on the implementation of this Directive.
  This report shall address:






  — | implementation of this Directive in the Member States and the effective working of the various bodies involved; |
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9)

Article 10(8) shall be replaced by the following:

‘8.   By 1 January 2009, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions a report on the implementation of this Directive.

This report shall address:

—

implementation of this Directive in the Member States and the effective working of the various bodies involved;

| — | market development, in particular international traffic trends, activities and market share of all market actors, including new entrants.’; |
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—

market development, in particular international traffic trends, activities and market share of all market actors, including new entrants.’;

| 10) | the following paragraph shall be added to Article 10:
  ‘9.   By 31 December 2012, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions a report on the implementation of the provisions of paragraph 3.’; |
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10)

the following paragraph shall be added to Article 10:

‘9.   By 31 December 2012, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee, and the Committee of the Regions a report on the implementation of the provisions of paragraph 3.’;

| 11) | the following subparagraph shall be added to Article 15:
  ‘The obligations for transposition and implementation of this Directive shall not apply to Cyprus and Malta for as long as no railway system is established within their territory.’. |
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11)

the following subparagraph shall be added to Article 15:

‘The obligations for transposition and implementation of this Directive shall not apply to Cyprus and Malta for as long as no railway system is established within their territory.’.

Article 2

Directive 2001/14/EC is hereby amended as follows:

| 1) | the following point shall be added to paragraph (3) of Article 1:






  ‘e) | transport operations in the form of railway services which are carried out in transit through the Community.’; |
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1)

the following point shall be added to paragraph (3) of Article 1:

‘e)

transport operations in the form of railway services which are carried out in transit through the Community.’;

| 2) | the following point shall be added to Article 2:






  ‘n) | “transit” shall mean the crossing of the Community territory which is carried out without loading or unloading of goods, and/or without picking up of passengers nor setting them down in the Community territory.’; |
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2)

the following point shall be added to Article 2:

‘n)

“transit” shall mean the crossing of the Community territory which is carried out without loading or unloading of goods, and/or without picking up of passengers nor setting them down in the Community territory.’;

| 3) | the following paragraph shall be added to Article 13:
  ‘4.   When an applicant intends to request infrastructure capacity with a view to operating an international passenger service as defined in Article 3 of Directive 91/440/EEC, it shall inform the infrastructure managers and the regulatory bodies concerned. In order to enable the assessment of the purpose of the international service to carry passengers between stations located in different Member States, and the potential economic impact on existing public service contracts, regulatory bodies shall ensure that any competent authority that has awarded a rail passenger service defined in a public service contract, any other interested competent authority with a right to limit access under Article 10(3b) of Directive 91/440/EEC and any railway undertaking performing the public service contract on the route of this international passenger service is informed.’; |
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3)

the following paragraph shall be added to Article 13:

‘4.   When an applicant intends to request infrastructure capacity with a view to operating an international passenger service as defined in Article 3 of Directive 91/440/EEC, it shall inform the infrastructure managers and the regulatory bodies concerned. In order to enable the assessment of the purpose of the international service to carry passengers between stations located in different Member States, and the potential economic impact on existing public service contracts, regulatory bodies shall ensure that any competent authority that has awarded a rail passenger service defined in a public service contract, any other interested competent authority with a right to limit access under Article 10(3b) of Directive 91/440/EEC and any railway undertaking performing the public service contract on the route of this international passenger service is informed.’;

| 4) | Article 17(5) shall be replaced by the following:
  ‘5.   Framework agreements shall in principle cover a period of five years, renewable for periods equal to their original duration. The infrastructure manager may agree to a shorter or longer period in specific cases. Any period longer than five years shall be justified by the existence of commercial contracts, specialised investments or risks.
  5a.   For services using specialised infrastructure referred to in Article 24 which requires substantial and long-term investment, duly justified by the applicant, framework agreements may be for a period of 15 years. Any period longer than 15 years shall be permissible only in exceptional cases, in particular where there is large-scale, long-term investment, and particularly where such investment is covered by contractual commitments including a multi-annual amortisation plan.
  The applicant's requirements may in this case call for detailed definition of the capacity characteristics — including the frequency, volume and quality of train paths — which are to be provided to the applicant for the duration of the framework agreement. The infrastructure manager may reduce reserved capacity which, over a period of at least one month, has been used less than the threshold quota provided for in Article 27.
  As from 1 January 2010, an initial framework agreement may be drawn up for a period of 5 years, renewable once, on the basis of the capacity characteristics used by applicants operating services before 1 January 2010, in order to take account of specialised investments or the existence of commercial contracts. The regulatory body referred to in Article 30 shall be responsible for authorising the entry into force of such an agreement.’; |
| --- | --- |

4)

Article 17(5) shall be replaced by the following:

‘5.   Framework agreements shall in principle cover a period of five years, renewable for periods equal to their original duration. The infrastructure manager may agree to a shorter or longer period in specific cases. Any period longer than five years shall be justified by the existence of commercial contracts, specialised investments or risks.

5a.   For services using specialised infrastructure referred to in Article 24 which requires substantial and long-term investment, duly justified by the applicant, framework agreements may be for a period of 15 years. Any period longer than 15 years shall be permissible only in exceptional cases, in particular where there is large-scale, long-term investment, and particularly where such investment is covered by contractual commitments including a multi-annual amortisation plan.

The applicant's requirements may in this case call for detailed definition of the capacity characteristics — including the frequency, volume and quality of train paths — which are to be provided to the applicant for the duration of the framework agreement. The infrastructure manager may reduce reserved capacity which, over a period of at least one month, has been used less than the threshold quota provided for in Article 27.

As from 1 January 2010, an initial framework agreement may be drawn up for a period of 5 years, renewable once, on the basis of the capacity characteristics used by applicants operating services before 1 January 2010, in order to take account of specialised investments or the existence of commercial contracts. The regulatory body referred to in Article 30 shall be responsible for authorising the entry into force of such an agreement.’;

| 5) | the following sentence shall be inserted before the final sentence of Article 30(1):
  ‘It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract.’; |
| --- | --- |

5)

the following sentence shall be inserted before the final sentence of Article 30(1):

‘It shall furthermore be functionally independent from any competent authority involved in the award of a public service contract.’;

| 6) | the following subparagraph shall be added to Article 38:
  ‘The obligations for transposition and implementation of this Directive shall not apply to Cyprus and Malta for as long as no railway system is established within their territory.’. |
| --- | --- |

6)

the following subparagraph shall be added to Article 38:

‘The obligations for transposition and implementation of this Directive shall not apply to Cyprus and Malta for as long as no railway system is established within their territory.’.

Article 3

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before ... (12). They shall forthwith communicate to the Commission the text of those provisions.

12

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The methods of making such reference shall be laid down by the Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

3.   The provisions of points 2, 5, 6 and 7 of Article 1 shall apply from 1 January 2010.

Article 4

This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Official Journal of the European Union

Article 5

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament

For the Council

...

The President

The President

...

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(1)  OJ C 221, 8.9.2005, p. 56.

1

(2)  OJ C 71, 22.3.2005, p. 26.

2

(3)  Opinion of the European Parliament of 28 September 2005 (not yet published in the Official Journal), Council Common Position of 24 July 2006 and Position of the European Parliament of ... (not yet published in the Official Journal).

3

(4)  OJ L 237, 24.8.1991, p. 25. Directive as last amended by Directive 2004/51/EC of the European Parliament and of the Council (OJ L 164, 30.4.2004, p. 164). Corrected by OJ L 220, 21.6.2004, p. 58.

4

(5)  OJ L 75, 15.3.2001, p. 29. Directive as last amended by Directive 2004/49/EC (OJ L 164, 30.4.2004, p. 44). Corrected by OJ L 220, 21.6.2004, p. 16.

5

(6)  OJ L 75, 15.3.2001, p. 1.

6

(7)  OJ L 164, 30.4.2004, p. 164. Corrected by OJ L 220, 21.6.2004, p. 58.

7

(8)  OJ L 75, 15.3.2001, p. 26.

8

(9)  OJ L 164, 30.4.2004, p. 44. Corrected by OJ L 220, 21.6.2004, p. 16.

9

(10)  OJ L 156, 28.6.1969, p. 1. Regulation as last amended by Regulation (EEC) No 1893/91 (OJ L 169, 29.6.1991, p. 1).

10

(11)  OJ C 321, 31.12.2003, p. 1.

11

(12)  18 months after the entry into force of this Directive.

12

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

The Commission presented the proposal for a Directive amending Directive 91/440/EEC on the development of the Community's railways, the so-called ‘Rail Market Access proposal’, on 3 March 2004 as one of the four proposals of the Third Railway Package (1).

On 28 September 2005, the European Parliament voted its opinion in 1st reading.

On 24 July 2006, the Council adopted its Common Position in accordance with Article 251 of the Treaty.

In carrying out its work, the Council took account of the opinions of the European Economic and Social Committee (2) and of the Committee of the Regions (3).

II.   ANALYSIS OF THE COMMON POSITION

1.   General

The negotiations on the opening of the market for international rail passenger services took place in a policy context shaped by the Commission's White Paper on European transport policy for 2010 (4), as well as by the First and the Second railway Package. In the White Paper the Commission announced its intention to continue building the internal market for rail services by inter alia, proposing to open up the market for international passenger services. The First and the Second Railway Package contain detailed provisions on infrastructure access, interoperability and rail safety at national and European level, thereby providing a framework, which would permit opening the market for freight services and for international passenger services.

At its meeting of 5 December 2005, the Council was able to reach Political Agreements on three of the four legislative proposals of the Third Railway Package: the Rail Market Access proposal, which is the subject of this document, and the proposals on Passengers' rights and obligations and on Train crews — thereby paving the way for the adoption of three Common Positions.

Central to the Council's discussions on the Rail Market Access proposal was the relation between this proposal and the revised proposal on public passenger transport services by rail and by road — the so-called ‘Public Service Obligations proposal’ (5). Consequently, at the Council meeting of 5 December 2005, a Political Agreement on the Rail Market Access proposal could only be reached by addressing the relation between both proposals and giving guidance to several elements of the Public Service Obligations proposal in a Statement to the minutes made by the Council and the Commission (see Annex I).

2.   Key policy issues

2.1.   Opening the market for international rail passenger services

Opening the market can — through the introduction of competition — contribute to more efficient and more attractive European rail services. By agreeing to grant, by 1 January 2010, to railway undertakings for the purpose of operating international passenger services, the right of access to the infrastructure of all Member States, the Council follows the compromise reached with Parliament at the time of the conciliation procedure on the Second Railway Package (6). Opening the market for international rail passenger services by 2010 would allow operators to prepare in an appropriate manner. It would also coincide with both a doubling and further interconnection of trans-European high-speed lines, and with a consolidation of the framework as established by the First and the Second railway package.

Opening the market for international services including cabotage will have a strong impact on Member States where international transport forms an important share of total rail passenger services. With that in mind, Council wants to leave these Member States more time to prepare for market opening, by allowing them to grant the right of access by 1 January 2012 at the latest.

Consequently, the Council does not agree with Parliament's view to open international rail passenger services by 2008, and all other forms of rail passenger services by 2012 (Amendments 2, 8 and 9 as regards the timetable for market opening for rail passenger services; Amendments 6 and 12 on the preparation of evaluation reports by the Commission on the opening of the markets for national and international rail passenger services).

2.2.   Right to pick up and set down passengers in the same Member State

The Council, like the European Parliament, accepts the Commission's proposal to allow international rail passengers services to pick up and set down passengers at stations located in the same Member State. Council is of the opinion that this so-called cabotage transport is necessary to make viable international services possible.

However, the Council wants to avoid that a right of access for international rail passenger services, which include cabotage, leads to the opening of the market for domestic rail passenger services. Therefore, the Common Position allows granting the right of access only to those international services, which have as a ‘principal purpose’ the carriage of passengers between stations located in different Member States. In the Common Position, a procedure is foreseen for determining the purpose of international service for which access is requested.

2.3.   Safeguarding public transport services

In essence, the Common Position on the Rail Market Access proposal reflects the balance the Council has found between market opening on the one hand and safeguarding public transport services on the other hand. In finding this balance, the Council has added three elements to the Commission proposal: a procedure for determining whether opening the market for international rail passenger services compromises a public transport service; a clarification on the modalities for granting the right of access; and a provision which allows Member States to charge a levy on international rail passenger services. The balance between market opening and safeguarding of public services is also expressed in the Statement made by the Council and the Commission to the minutes of the Council's meeting of 5 December 2005 (see Annex I).

2.3.1.   Procedure

To clarify when the right of access can be limited, the Common Position contains a procedure for determining if an international rail passenger service would compromise the economic equilibrium of a public transport service. An important element of this procedure regards an objective economic analysis undertaken by the regulatory body of the impact of the international rail passenger service on public transport services. The Council has taken this idea from Parliament's Amendment 10.

2.3.2.   Modulation of the limitation of the right of access

With a view to bringing more flexibility to the decision to grant access rights, the Common Position makes it clear that — after the determination that the economic equilibrium of a public transport service would be compromised — several modalities exist for limiting the right of access for international rail passenger services. In line with the principles of equality and non-discrimination, the Council indicates that Member States can authorise, modify or deny the right of access, including by the levying of a charge on the operator of a new international passenger service. By having the possibility to support public transport services with levies charged on international rail passenger service, Member States have more leeway to open the market while safeguarding public services.

2.3.3.   Equalization

In some Member States, profitable rail passenger services contribute through a levy to public transport services, which operate at a loss. The Council wants to make clear that such a levy can also be charged to railway undertakings, which are granted the right of access. Such an obligation to contribute to public service obligations' compensations is restricted to the territory of the Member State that charges the levy. Moreover, the levy should not endanger the economic viability of the international passenger service. Finally, in the Common Position it is envisaged that if a Member State chooses to levy such charges, it is obliged to provide the Commission with the necessary information. With regard to equalization, Portugal made a statement in the TTE Council of December 2005 (Annex II).

2.4.   Framework Agreements

The Council, like the Parliament, thinks it is necessary to complement the opening of the market for international rail passenger services with arrangements for a more stable and predictable climate for investments in the infrastructure for these services, and in particular for services using specialised infrastructure. Consequently, taking inspiration from Parliament's Amendments 5, 7 and 13, Council proposes to modify the provisions with regard to framework agreements in Directive 2001/14/EC (7). Where the Parliament proposes to allow for services using specialised infrastructure, which require substantial and long-term investment framework agreements with a duration of 10 years, the Council is of the opinion that a 15 years' duration is more appropriate.

2.5.   Reciprocity-clause

Like Parliament, in its Amendments 3 and 11, the Council wants to include in the Rail Market Access proposal a provision allowing Member States, which have opened their market for international rail passenger services, to withhold the right of access for undertakings licensed in a Member State where access rights of a similar nature are not granted.

2.6.   Other significant issues

2.6.1.   Transit

In the Common Position, the Council clarifies that the aim of the Rail Market Access proposal is to open the market for international rail passenger services within the Community and that transport services of goods and passengers, which begin and end in third countries and which transit Community territory, are not included within the scope of the proposal. Lithuania made a Statement to the minutes on the issue of transit (see Annex III).

2.6.2.   Concession based system

The Commission proposal is based on the principle of competition on the rails. The Council follows this principle, but acknowledges that also other principles are possible regarding the introduction of competition which, moreover, are already applied in practice. With that in mind, the Council is in favour of allowing Member States for a transitory period, not to provide full open access to international rail passenger services in cases where the right to use certain rail routes has already involved a sufficient test of market value through the principle of competition for the rails.

2.6.3.   Exemption from implementation for Malta/Cyprus

Taking into account of the fact that Malta and Cyprus do not have a railway system, and that the prospects of them having one are very limited, Council exempts these two Member States from the obligation to implement the Rail Market Access Directive.

3.   European Parliament Amendments.

The response of the Council to the Amendments 2, 3, 5, 6, 7 8, 9, 10, 11, 12 and 13 is set out above in relation to the key issues.

In addition, the Council has accepted Amendment 2 as regards the reference to Directive 2004/49, Amendment 4 as regards the mentioning of the first Public Service Obligations proposal of the Commission of July 2000, and Amendment 7 in full.

The Council does not accept Amendment 4 as regards the adoption of a Common Position on the Public Service Obligations proposal and Amendment 6 as regards the obligation for the Commission to present an impact assessment on the opening of the networks for national passenger services by 2005.

III.   CONCLUSION

After careful consideration of the Parliament's opinion, the Council has come to a Common Position reflecting a balance between opening the market for international rail passenger services, on the one hand, and safeguarding public transport services, on the other hand. In finding this balance, the Council has drawn on several important Amendments of Parliament. Whilst the Council has not been able to fully accept the Parliament's approach on the pace of granting rights of access, the Common Position sets out a timetable, which would enable both operators and authorities to prepare the opening of the market for rail passenger services in an appropriate manner.

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(1)  The other 3 legislative proposals concern:

| — | a Regulation on rights and obligations for passengers in international rail transport (doc. 7149/04 TRANS 109 CODEC 337); |
| --- | --- |

—

a Regulation on rights and obligations for passengers in international rail transport (doc. 7149/04 TRANS 109 CODEC 337);

| — | a Regulation on quality obligations for rail freight services (doc. 7150/04 TRANS 110 CODEC 338); |
| --- | --- |

—

a Regulation on quality obligations for rail freight services (doc. 7150/04 TRANS 110 CODEC 338);

| — | a Directive on the certification of train crews operating locomotives and trains on the Community's rail network railways (doc. 7148/04 TRANS 108 CODEC 336). |
| --- | --- |

—

a Directive on the certification of train crews operating locomotives and trains on the Community's rail network railways (doc. 7148/04 TRANS 108 CODEC 336).

(2)  OJ C 221, 9.9.2005, p. 56.

(3)  OJ C 71, 22.03.2005, p. 26.

(4)  doc. 11932/01 TRANS 131 AVIATION 70 MAR 76.

(5)  doc. 11508/05 TRANS 155 CODEC 657.

(6)  This compromise is incorporated in recital 4 of Directive 2004/51 and reads that ‘With regard to market opening for international passenger transport services, the date of 2010 proposed by the Commission has to be considered as an objective allowing all operators to prepare in an appropriate manner.’

(7)  Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification

(OJ L 75, 15.3.2001, p. 29).

ANNEX I

ANNEX II

STATEMENT BY THE PORTUGUESE REPUBLIC

Portugal reiterates its support for the objective of liberalisation of rail transport and is therefore voting in favour of the Directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways.

Nevertheless, it regrets the approval of a new Article 1(8)(3f) allowing Member States to impose a new levy on international rail passenger services in order to contribute to public service contracts.

This legislative solution will impair the normal development of the European market and will affect access for passengers from peripheral Member States to Europe's other regions. Furthermore, it is contrary to the promotion of modal shift, one of the main objectives of Community policy for the sector.

Portugal hopes that during the next stage of the co-decision legislative procedure, this provision can be revised in order to mitigate the negative effects it could have on the liberalisation of international passenger transport.

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