1991L0440 — EN — 15.03.2001 — 001.002 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL DIRECTIVE
of 29 July 1991
on the development of the Community's railways
(91/440/EEC)
(OJ L 237, 24.8.1991, p. 25)
Amended by:
Official Journal
No page date
►M1 Directive 2001/12/EC of the European Parliament and of the Council of
26 February 2001L 75 1 15.3.2001
Corrected by:
►C1 Corrigendum, OJ L 305, 6.11.1991, p. 22 (91/440/EEC)
►C2 Corrigendum, OJ L 334, 18.12.2001, p. 34 (2001/12/EC)
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COUNCIL DIRECTIVE
of 29 July 1991
on the development of the Community's railways
(91/440/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 75 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas greater integration of the Community transport sector is an
essential element of the internal market, and whereas the railways are avital part of the Community transport sector;
Whereas the efficiency of the railway system should be improved, in
order to integrate it into a competitive market, whilst taking account ofthe special features of the railways;
Whereas, in order to render railway transport efficient and competitive
as compared with other modes of transport, Member States mustguarantee that railway undertakings are afforded a status of independentoperators behaving in a commercial manner and adapting to marketneeds;
Whereas the future development and efficient operation of the railway
system may be made easier if a distinction is made between theprovision of transport services and the operation of infrastructure;whereas given this situation, it is necessary for these two activities to be
separately managed and have separate accounts;
Whereas, in order to boost competition in railway service management
in terms of improved comfort and the services provided to users, it is
appropriate for Member States to retain general responsibility for the
development of the appropriate railway infrastructure;
Whereas, in the absence of common rules on allocation of infrastructure
costs, Member States shall, after consulting the infrastructure manage-
ment, lay down rules providing for the payment by railway undertakings
and their groupings for the use of railway infrastructure; whereas suchpayments must comply with the principle of non-discrimination betweenrailway undertakings;
Whereas Member States should ensure in particular that ►
C1existing
publicly owned or controlled ◄railway transport undertakings are
given a sound financial structure, whilst taking care that any financialrearrangement as may be necessary shall be made in accordance with therelevant rules laid down in the Treaty;
Whereas, in order to facilitate transport between Member States, railway
undertakings should be free to form groupings with railway undertakingsestablished in other Member States;
Whereas, such international groupings should be granted rights of access
and transit in the Member States of establishment of their constituentundertakings, as well as transit rights in other Member States as requiredfor the international service concerned;
Whereas, with a view to encouraging combined transport, it is
appropriate that access to the railway infrastructure of the other MemberStates should be granted to railway undertakings engaged in theinternational combined transport of goods;1991L0440 — EN — 15.03.2001 — 001.002 — 2
(1) OJ No C 34, 14.2.1990, p. 8 and OJ No C 87, 4.4.1991, p. 7.
(2) OJ No C 19, 28.1.1991, p. 254.
(3) OJ No C 225, 10.9.1990, p. 27.
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Whereas it is necessary to establish an advisory committee to monitor
and assist the Commission with the implementation of this Directive;
Whereas, as a result, Council Directive 75/327/EEC of 20 May 1975 on
the improvement of the situation of railway undertakings and theharmonization of rules governing financial relations between suchundertakings and States (
1) should be repealed,
HAS ADOPTED THIS DIRECTIVE:
SECTION I
Scope and Definitions
Article 2
1. This Directive shall apply to the management of railway
infrastructure and to rail transport activities of the railway undertakingsestablished or to be established in a Member State.
2. Railway undertakings whose activity is limited to the provision of
solely urban, suburban or regional services shall be excluded from thescope of this Directive.
3. Undertakings the train operations of which are limited to providing
solely shuttle services for road vehicles through the Channel Tunnel are
excluded from the scope of this Directive except Articles 6(1), 10 and10a.
Article 3
For the purpose of this Directive:
— ‘railway undertaking’ shall mean any public or private undertaking
licensed according to applicable Community legislation, theprincipal business of which is to provide services for the transportof goods and/or passengers by rail with a requirement that theundertaking must ensure traction; this also includes undertakings
which provide traction only;
— ‘infrastructure manager’ shall mean any body or undertaking
responsible in particular for establishing and maintaining railwayinfrastructure. This may also include the management of infra-structure control and safety systems. The functions of theinfrastructure manager on a network or part of a network may beallocated to different bodies or undertakings
— ‘railway infrastructure’ shall mean all the items listed in Annex I.A
to Commission Regulation (EEC) No 2598/70 of 18 December 1970specifying the items to be included under the various headings in theforms of accounts shown in Annex I to Regulation (EEC) No 1108/70 (
2), with the exception of the final indent which, for the purposes
of this Directive only, shall read as follows: ‘Buildings used by the
infrastructure department’,
— ‘international grouping’ shall mean any association of at least two
railway undertakings established in different Member States for thepurpose of providing international transport services betweenMember States;1991L0440 — EN — 15.03.2001 — 001.002 — 3
(1) OJ No L 152, 12.6.1975, p. 3.
(2) OJ No L 278, 23.12.1970, p. 1, Regulation amended by Regulation (EEC) No
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— ‘international freight service’ shall mean transport services where the
train crosses at least one border of a Member State; the train may bejoined and/or split and the different sections may have different
origins and destinations, provided that all wagons cross at least one
border
— ‘urban and suburban services’ shall mean transport services operated
to meet the transport needs of an urban centre or conurbation, as well
as the transport needs between such centre or conurbation and
surrounding areas;
— ‘regional services’ shall mean transport services operated to meet the
transport needs of a region.
SECTION II
Management independence
Article 4
1. Member States shall take the measures necessary to ensure that as
regards management, administration and internal control over adminis-
trative, economic and accounting matters railway undertakings haveindependent status in accordance with which they will hold, inparticular, assets, budgets and accounts which are separate from thoseof the State.
2. While respecting the framework and specific charging and
allocation rules established by the Member States, the infrastructuremanager shall have responsibilities for its own management, adminis-tration and internal control.
Article 5
1. Member States shall take the measure necessary to enable railway
undertakings to adjust their activities to the market and to manage thoseactivities under the responsibility of their management bodies, in theinterests of providing efficient and appropriate services at the lowest
possible cost for the quality of service required.
Railway undertakings shall be managed according to the principles
which apply to commercial companies; this shall also apply to theirpublic services obligations imposed by the State and to public servicescontracts which they conclude with the competent authorities of the
Member State.
2. Railway undertakings shall determine their business plans,
including their investment and financing programmes. Such plans shallbe designed to achieve the undertakings' financial equilibrium and theother technical, commercial and financial management objectives;►
C1they must also provide for the means enabling these objectives
to be obtained. ◄
3. In the context of the general policy guidelines determined by the
State and taking into account national plans and contracts (which may bemultiannual) including investment and financing plans, railway under-takings shall, in particular, be free to:
— establish with one or more other railway undertakings an interna-
tional grouping;
— establish their internal organization, without prejudice to the
provisions of Section III;1991L0440 — EN — 15.03.2001 — 001.002 — 4
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— control the supply and marketing of services and fix the pricing
thereof, without prejudice to Council Regulation (EEC) No 1191/69of 26 June 1969 on action by Member States concerning the
obligation inherent in the concept of a public service in transport by
rail, road and inland waterway (
1),
— take decisions on staff, assets and own procurement,— expand their market share, develop new technologies and new
services and adopt any innovative management techniques;
— establish new activities in fields associated with railway business.
SECTION III
Separation between infrastructure management and transport
operations
Article 6
1. Member States shall take the measures necessary to ensure that
separate profit and loss accounts and balance sheets are kept andpublished, on the one hand, for business relating to the provision of
transport services by railway undertakings and, on the other, for business
relating to the management of railway infrastructure. Public funds paidto one of these two areas of activity may not be transferred to the other.
The accounts for the two areas of activity shall be kept in a way that
reflects this prohibition.
2. Member States may also provide that this separation shall require
the organisation of distinct divisions within a single undertaking or that
the infrastructure shall be managed by a separate entity.
3. Member States shall take the measures necessary to ensure that the
functions determining equitable and non-discriminatory access toinfrastructure, listed in Annex II, are entrusted to bodies or firms thatdo not themselves provide any rail transport services. Regardless of theorganisational structures, this objective must be shown to have been
achieved.
Member States may, however, assign to railway undertakings or any
other body the collecting of the charges and the responsibility formanaging the railway infrastructure, such as investment, maintenanceand funding.
4. The application of paragraph 3 shall be subject to a report by the
Commission in accordance with Article 10b, to be submitted by 15
March 2006.
Article 7
1. Member States shall take the necessary measures for the
development of their national railway infrastructure taking into account,where necessary, the general needs of the Community.
2. Member States shall ensure that safety standards and rules are laid
down, rolling stock and railway undertakings are certified accordinglyand accidents investigated. These tasks shall be accomplished by bodiesor undertakings that do not provide rail transport services themselves
and are independent of bodies or undertakings that do so, in such a way
as to guarantee equitable and non-discriminatory access to infrastruc-ture.
Railway undertakings shall apply these safety standards and rules.
Unless Member States mandate independent bodies with enforcementand monitoring, they may require or allow railway undertakings to be
involved in ensuring the enforcement and monitoring of the safety
standards and rules while guaranteeing the neutral and non-discrimina-tory execution of these functions.1991L0440 — EN — 15.03.2001 — 001.002 — 5
(1) OJ No L 156, 28.6.1969, p. 1; Regulation last amended by Regulation (EEC)
No 1893/91 (OJ No L 169, 29.6.1991, p. 1).▼M1
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3. Member States may also accord the infrastructure manager, having
due regard to Articles 73, 87 and 88 of the Treaty, financing consistentwith the tasks, size and financial requirements, in particular in order to
cover new investments.
4. Within the framework of general policy determined by the State,
the infrastructure manager shall draw up a business plan includinginvestment and financial programmes. The plan shall be designed toensure optimal and efficient use and development of the infrastructure
while ensuring financial balance and providing means for these
objectives to be achieved.
Article 8
The manager of the infrastructure shall charge a fee for the use of the
railway infrastructure for which he is responsible, payable by railwayundertakings and international groupings using that infrastructure. Afterconsulting the manager, Member States shall lay down the rules fordetermining this fee.
The user fee, which shall be calculated in such a way as to avoid any
discrimination between railway undertakings, may in particular take intoaccount the mileage, the composition of the train and any specificrequirements in terms of such factors as speed, axle load and the degreeor period of utilization of the infrastructure.
SECTION IV
Improvement of the financial situation
Article 9
1. In conjunction with ►C1the existing publicly owned or
controlled railway undertakings ◄, Member States shall set up
appropriate mechanisms to help reduce the indebtedness of suchundertakings to a level which does not impede sound financialmanagement and to improve their financial situation.
2. To that end, Member States may take the necessary measures
requiring a separate debt amortization unit to be set up within the
accounting departments of such undertakings.
The balance sheet of the unit may be charged, until they are
extinguished, with all the loans raised by the undertaking both tofinance investment and to cover excess operating expenditure resulting
from the business of rail transport or from railway infrastructure
management. Debts arising from subsidiaries' operations may not betaken into account.
3. Aid accorded by Member States to cancel the debts referred to in
this Article shall be granted in accordance with Articles 73, 87 and 88 ofthe Treaty.
4. In the case of railway undertakings profit and loss accounts and
either balance sheets or annual statement of assets and liabilities shall be
kept and published for business relating to the provision of rail freight-
transport services. Funds paid for activities relating to the provision ofpassenger-transport services as public-service remits must be shownseparately in the relevant accounts and may not be transferred toactivities relating to the provision of other transport services or any otherbusiness.1991L0440 — EN — 15.03.2001 — 001.002 — 6
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SECTION V
Access to railway infrastructure
Article 10
1. International groupings shall be granted access and transit rights in
the Member States of establishment of their constituent railwayundertakings, as well as transit rights in other Member States, forinternational services between the Member States where the under-takings constituting the said groupings are established.
2. Railway undertakings within the scope of Article 2 shall be
granted, on equitable conditions, access to the infrastructure in otherMember States for the purpose of operating international combinedtransport goods services.
3. Whatever the mode of operation, railway undertakings within the
scope of Article 2 shall be granted, on equitable conditions, the accessthat they are seeking to the Trans-European Rail Freight Networkdefined in Article 10(a) ►
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March 2008, to the entire rail network, ◄for the purpose of operating
international freight services.
4. At the request of a Member State or on its own initiative the
Commission shall, in a specific case, examine the application and
enforcement of this Article, and within two months of receipt of such a
request and after consulting the Committee referred to in Article 11a(2),decide whether the related measure may continue to be applied. TheCommission shall communicate its decision to the European Parliament,the Council and to the Member States.
Without prejudice to Article 226 of the Treaty, any Member State may
refer the Commission's decision to the Council within a time limit of onemonth. The Council, acting by a qualified majority, may in exceptionalcircumstances take a different decision within a period of one month.
5. Any railway undertaking engaged in rail transport services under
paragraphs 1, 2 and 3 shall conclude the necessary administrative,technical and financial agreements on the basis of public or private lawwith the infrastructure managers of the railway infrastructure used with aview to regulating traffic control and safety issues concerning that
transport. The conditions governing such agreements shall be non-
discriminatory and, if applicable, in conformity with the provisions ofDirective 2000/14/EC of the European Parliament and of the Council of26 February 2001 on the allocation of railway infrastructure capacityand the levying of charges for the use of railway infrastructure and
safety certification (
1).
6. Track access to, and supply of, services in the terminals and ports
linked to rail activities referred to in paragraphs 1, 2 and 3, serving orpotentially serving more than one final customer, shall be provided to all
railway undertakings in a non-discriminatory manner, and requests by
railway undertakings may be subject to restrictions only if viablealternatives under market conditions exist.
7. Without prejudice to Community and national regulations
concerning competition policy and the institutions with responsibility
in that area, the regulatory body established pursuant to Article 30 ofDirective 2000/14/EC, or any other body enjoying the same degree ofindependence shall monitor the competition in the rail services markets,including the rail freight transport market.
That body shall be set up in accordance with the rules in Article 30(1) of
the said Directive. Any applicant or interested party may lodge acomplaint with this body if it feels that it has been treated unjustly, hasbeen the subject of discrimination or has been injured in any other way.On the basis of the complaint and, where appropriate, on its own1991L0440 — EN — 15.03.2001 — 001.002 — 7
(1) See page 29 of this Official Journal.▼M1
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initiative, the regulatory body shall decide at the earliest opportunity on
appropriate measures to correct undesirable developments in thesemarkets. In order to ensure the necessary possibility of judicial control
and the requisite cooperation between national regulatory bodies, Article
30(6) and Article 31 of the said Directive shall apply in this context.
8. In accordance with Article 14 which provides for a report on the
implementation of this Directive, accompanied by suitable proposals oncontinuing Community action to develop the railway market ►
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the legal framework governing it, and in any case after 15 March2008,◄the Trans-European Rail Freight Network defined in Article
10a and Annex I, granting access for the international transport of goods
to the railway undertakings defined in Article 3, shall be extended tocover the entire European rail network. The railway undertakings shallbe granted, over that entire network and on fair conditions, guaranteedaccess and transit for the international transport of goods.
Article 10a
1. The Trans-European Rail Freight Network consists of the
following elements:
a) Railway lines as indicated in the maps in Annex I.
b) Diversionary routes, where appropriate, particularly around
congested infrastructure within the meaning of Directive 2000/14/EC. When these routes are offered, overall journey times shall besafeguarded as far as this is feasible.
c) Track access to terminals serving or potentially serving more than
one final customer and to other sites and facilities, including feeder
lines to and from these.
d) Track access to and from ports as listed in Annex I, including feeder
lines.
2. The feeder lines mentioned in paragraph 1(c) and (d) cover at
either end of the journey 50 km or 20 % of the length of the journey onthe railway lines referred to in paragraph 1(a), whichever is greater.
Belgium and Luxembourg, as Member States with a relatively small or
concentrated network, may limit the length of the feeder lines in the firstyear after 15 March 2003 to at least 20 km and until the end of the
second year to at least 40 km.
SECTION Va
Monitoring tasks of the Commission
Article 10b
1. Not later than 15 September 2001 the Commission shall make the
necessary arrangements to monitor technical and economic conditionsand market developments of European rail transport. The Commissionshall ensure that adequate resources are made available to enable theeffective monitoring of this sector.
2. In this context, the Commission shall closely involve representa-
tives of the Member States and of the sectors concerned in its work,including users, so that they are able better to monitor the development
of the railway sector and the evolution of the market, assess the effect of
the measures adopted and analyse the impact of the measures planned bythe Commission.
3. The Commission shall monitor the use of the networks and the
evolution of the framework conditions in the rail sector, in particularinfrastructure charging, capacity allocation, safety regulation andlicensing and the degree of harmonisation that evolves. It shall ensure
an active cooperation between the appropriate regulatory bodies in the
Member States.
4. The Commission shall report to the European Parliament and the
Council on:
a) the evolution of the internal market in rail services1991L0440 — EN — 15.03.2001 — 001.002 — 8
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b) the framework conditions
c) the state of the Trans-European Rail Freight Network
d) the utilisation of access rights
e) barriers to more effective rail services
f) infrastructure limitations, and
g) the need for legislation.
SECTION VI
Final provisions
Article 11
1. Member States may bring any question concerning the imple-
mentation of this Directive to the attention of the Commission.Appropriate decisions shall be adopted by use of the advisory procedurereferred to in Article 11a(2).
2. The amendments necessary to adapt the Annexes shall be adopted
by use of the regulatory procedure referred to in Article 11a(3).
Article 11a
1. The Commission shall be assisted by a Committee.
2. Where reference is made to this paragraph, Articles 3 and 7 of
Decision 1999/468/EC shall apply, having regard to the provisions of
Article 8 thereof.
3. Where reference is made to this paragraph, Articles 5 and 7 of
Decision 1999/468/EC shall apply, having regard to the provisions of
Article 8 thereof.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be
set at three months.
4. The Committee shall adopt its rules of procedure.
Article 12
The provisions of this Directive shall be without prejudice to Council
Directive 90/531/EEC of 17 September 1990 on the procurmentprocedure of entities operating in the water, energy, transport andtelecommunications sectors (
1).
Article 13
Decision 75/327/EEC is hereby repealed as from 1 January 1993.
Reference to the repealed Decision shall be understood to refer to this
Directive.
Article 14
By 15 March 2005 the Commission shall submit to the European
Parliament, the Economic and Social Committee, the Committee of theRegions and the Council a report on the implementation of this Directiveaccompanied by suitable proposals on continuing Community action todevelop the railway market and the legal framework governing it.1991L0440 — EN — 15.03.2001 — 001.002 — 9
(1) OJ No L 297, 29.10.1990, p. 1.▼B
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Article 14a
1. For a period of five years from 15 March 2003, the following
Member States:
— Ireland, as a Member State located on an island with a rail link to
only one other Member State
— the United Kingdom, in respect of Northern Ireland, on the same
basis, and
— Greece, as a Member State that does not have any direct rail link to
any other Member State,
do not need to apply the requirement to entrust to an independent body
the functions determining equitable and non-discriminatory access toinfrastructure, as provided for in Article 6(3), first subparagraph and thetasks set out in Article 7(2), first subparagraph, in so far as those Articles
oblige Member States to establish independent bodies performing the
tasks referred to in the said Articles.
2. However, where:
a) more than one railway undertaking licensed in accordance with
Article 4 of Directive 95/18/EC, or, in the case of Ireland and of
Northern Ireland, a railway company so licensed elsewhere, submitsan official application to operate competing railway services in, to orfrom Ireland, Northern Ireland or Greece, the continued applicabilityof this derogation will be decided upon in accordance with theadvisory procedure referred to out in Article 11a(2); or
b) a railway undertaking operating railway services in Ireland, Northern
Ireland or Greece submits an official application to operate railwayservices on, to or from the territory of another Member State (in thecase of Ireland, or the United Kingdom, in respect of NorthernIreland, or both, another Member State outside their territories), the
derogation referred to in paragraph 1 shall not apply.
Within one year from the receipt of either the decision referred to in
point (a) adopted in accordance with the advisory procedure referred to
in Article 11a(2), or notification of the official application referred to in
point (b), the Member State or States concerned (Ireland, the UnitedKingdom with respect to Northern Ireland, or Greece) shall put in placelegislation to implement the Articles referred to in paragraph 1.
3. A derogation referred to in paragraph 1, may be renewed for
periods not longer than five years. Not later than 12 months before theexpiry date of the derogation a Member State availing itself of such
derogation may address a request to the Commission for a renewed
derogation. Any such request must be substantiated. The Commissionshall examine such a request and adopt a decision in accordance with theadvisory procedure referred to in Article 11a (2). The said advisoryprocedure shall apply to any decision related to the request.
When adopting its decision the Commission shall take into account any
development in the geopolitical situation and the development of the railmarket in, from and to the Member State having requested the renewed
derogation.
4. Luxembourg as a Member State with a relatively small rail
network does not need to apply until 31 August 2004 the requirement to
award to an independent body the functions determining equitable andnon-discriminatory access to infrastructure, as provided for in Article6(3), first subparagraph, in so far as it obliges Member States toestablish independent bodies performing the tasks referred to in that
Article.
Article 15
Member States shall, after consultation with the Commission, adopt the
laws, regulations and administrative provisions necessary to complywith this Directive not later than 1 January 1993. They shall forthwithinform the Commission thereof.1991L0440 — EN — 15.03.2001 — 001.002 — 10
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When Member States adopt these provisions, they shall contain a
reference to this Directive or be accompanied by such reference on theoccasion of their official publication. The methods of making such a
reference shall be laid down by the Member States.
Article 16
This Directive is addressed to the Member States.1991L0440 — EN — 15.03.2001 — 001.002 — 11
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ANNEX I
PORTS
BELGIE/BELGIQUE
Antwerpen/Anvers
Gent/Gand
Zeebrugge/Zeebruges
DANMARK
ÅlborgÅrhus
Esbjerg
FredericiaKøbenhavnNyborgOdense
DEUTSCHLAND
Brake
Bremen/BremerhavenBrunsbüttelCuxhaven
Emden
HamburgKielLübeckNordenham
Puttgarden
RostockSassnitzWilhelmshaven
Wismar
ΕΛΛΑΣ
ΑλεξανδρούπολιςΕλευσίναΠάτραΠειραιάς
Θεσσαλονίκη
Βόλος
ESPAÑA
AlgecirasAlmería
Barcelona
BilbaoCartagena-EscombrerasGijón1991L0440 — EN — 15.03.2001 — 001.002 — 12
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Huelva
TarragonaValencia
Vigo
FRANCE
Bayonne
BordeauxBoulogne
Calais
CherbourgDunkerque
Fos-Marseille
La RochelleLe Havre
Nantes
Port-la-NouvelleRouen
Sète
St-Nazaire
IRELAND
CorkDublin
ITALIA
Ancona
Bari
BrindisiC. Vecchia
Genova
Gioia TauroLa Spezia
Livorno
NapoliPiombino
Ravenna
SalernoSavona
Taranto
TriesteVenezia
LUXEMBOURG
NEDERLAND
Amsterdam Zeehaven
Delfzijl/Eemshaven1991L0440 — EN — 15.03.2001 — 001.002 — 13
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Vlissingen
Rotterdam ZeehavenTerneuzen
ÖSTERREICH
PORTUGAL
Leixões
Lisboa
Setúbal
Sines
SUOMI/FINLAND
Hamina
HankoHelsinki
Kemi
Kokkola
Kotka
OuluPori
Rauma
Tornio
Turku
SVERIGE
Göteborg-Varberg
HelsingborgLuleå
Malmö
Norrköping
Oxelösund
StockholmTrelleborg-Ystad
Umeå
UNITED KINGDOM
All rail-connected ports1991L0440 — EN — 15.03.2001 — 001.002 — 14
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ANNEX II
List of essential functions referred to in Article 6(3):
— preparation and decision making related to the licensing of railway
undertakings including granting of individual licenses,
— decision making related to the path allocation including both the definition
and the assessment of availability and the allocation of individual train paths,
— decision making related to infrastructure charging,
— monitoring observance of public service obligations required in the provision
of certain services.1991L0440 — EN — 15.03.2001 — 001.002 — 31