1991L0440 — EN — 13.09.1991 — 000.001 — 1
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►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)
Corrected by:
►C1 Corrigendum, OJ L 305, 6.11.1991, p. 22 (91/440)
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▼B
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 a
vital 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 must guar-antee 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 the provi-sion of transport services and the operation of infrastructure; whereasgiven this situation, it is necessary for these two activities to be sepa-rately 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 isappropriate for Member States to retain general responsibility for thedevelopment 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 undertakingsand their groupings for the use of railway infrastructure; whereas suchpayments must comply with the principle of non-discriminationbetween railway 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 withthe relevant rules laid down in the Treaty;
Whereas, in order to facilitate transport between Member States,
railway undertakings should be free to form groupings with railwayundertakings established in other Member States;
Whereas, such international groupings should be granted rights of
access and transit in the Member States of establishment of their consti-
tuent undertakings, as well as transit rights in other Member States as
required for the international service concerned;
Whereas, with a view to encouraging combined transport, it is appro-
priate that access to the railway infrastructure of the other Member
(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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States should be granted to railway undertakings engaged in the interna-
tional combined transport of goods;
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
Objective and scope
Article 1
The aim of this Directive is ►C1to facilitate the adaptation of the
Community railways ◄to the needs of the Single Market and to
increase their efficiency;
— by ensuring the management independance of railway undertakings;
— by separating the management of railway operation and infrastruc-
ture from the provision of railway transport services, separation ofaccounts being compulsory and organizational or institutionalseparation being optional,
— by improving the financial structure of undertakings,
— by ensuring access to the networks of Member states for interna-
tional groupings of railway undertakings and for railway undertak-ings engaged in the international combined transport of goods.
Article 2
1. This Directive shall apply to the management of railway infrastruc-
ture and to rail transport activities of the railway undertakings estab-lished or to be established in a Member State.
▼
C1
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.
▼
B
Article 3
For the purpose of this Directive:
— ‘railway undertaking’ shall mean any private or public undertaking
whose main business is to provide tail transport services for goodsand/or passengers with a requirement that the undertaking shouldensure traction,
— ‘infrastructure manager’ shall mean any public body or undertaking
responsible in particular for establishing and maintaining railway
infrastructure, as well as for operating the control and safetysystems,
— ‘railway infrastructure’ shall mean all the items listed in Annex I.A
to Commission Regulation (EEC) No 2598/70 of 18 December
1970 specifying the items to be included under the various headings
in the forms of accounts shown in Annex I to Regulation (EEC) No1108/70 (
2), with the exception of the final indent which, for the
purposes of this Directive only, shall read as follows: ‘Buildingsused by the infrastructure department’,
(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
2116/78 (OJ No L 246, 8.9.1978, p. 7).
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— ‘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;
— ‘urban and suburban services’ shall mean transport services oper-
ated to meet the transport needs of an urban centre or conurbation,as well as the transport needs between such centre or conurbationand surrounding areas;
— ‘regional services’ shall mean transport services operated to meet
the transport needs of a region.
SECTION II
Management independence of railway undertakings
Article 4
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, in parti-cular, assets, budgets and accounts which are separate from those of theState.
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 their
public services obligations imposed by the State and to public servicescontracts which they conclude with the competent authorities of theMember 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 maybe multiannual) including investment and financing plans, railwayundertakings 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 provi-
sions of Section III;
— control the supply and marketing of services and fix the pricing
thereof, without prejudice to Council Regulation (EEC) No 1191/69
of 26 June 1969 on action by Member States concerning the obliga-
tion 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.
(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).
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SECTION III
Separation between infrastructure management and transport
operations
Article 6
1. Member States shall take the measures necessary to ensure that the
accounts for business relating to the provision of transport services andthose for business relating to the management of railway infrastructureare kept separate. Aid paid to one of these two areas of activity may notbe transferred to the other.
The accounts for the two areas of activity shall be kept in a way which
reflects this prohibition.
2. Member States may also provide that this separation shall require
the organization of distinct divisions within a single undertaking or thatthe infrastructure shall be managed by a separate entity.
Article 7
1. Member States shall take the necessary measures for the develop-
ment of their national railway infrastructure taking into account, wherenecessary, the general needs of the Community.
They shall ensure that safety standards and rules are laid down and that
their application is monitored.
2. Member States may assign to railway undertakings or any other
manager the responsibility for managing the railway infrastructure andin particular for the investment, maintenance and funding required by
the technical, commercial and financial aspects of that management.
3. Member States may also accord the infrastructure manager, having
due regard to Articles 77, 92 and 93 of the Treaty, financing consistentwith the tasks, size and financial requirements, in particular in order tocover new investments.
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 takeinto account 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 appro-
priate mechanisms to help reduce the indebtedness of such undertakings
to a level which does not impede sound financial management and toimprove 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 extin-
guished, with all the loans raised by the undertaking both to financeinvestment and to cover excess operating expenditure resulting from thebusiness of rail transport or from railway infrastructure management.
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Debts arising from subsidiaries' operations may not be taken into
account.
3. Aid accorded by Member States to cancel the debts referred to in
this Article shall be granded in accordance with Articles 77, 92 and 93
of the EEC Treaty.
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 railway under-
takings, as well as transit rights in other Member States, for interna-
tional services between the Member States where the undertakingsconstituting the said groupings are established.
2. Railway undertakings within the scope of Article 2 shall be
granted acces on equitable conditions to the infrastructure in the other
Member States for the purpose of operating international combinedtransport goods services.
3. Railway undertakinks engaged in international combined transport
of goods and international groupings shall conclude the necessary
administrative, technical and financial agreements with the managers ofthe railway infrastructure used with a view to regulating traffic controland safety issues concerning the international transport services referredto in paragraphs 1 and 2. The conditions governing such agreementsshall be non-discriminatory.
SECTION VI
Final provisions
Article 11
1. Member States may bring any question concerning the implemen-
tation of this Directive to the attention of the Commission. Afterconsulting the committee provided for in paragraph 2 on these ques-tions, the Commission shall take the appropriate decisions.
2. The Commission shall be assisted by an advisory committee
composed of the representatives of the Member States and chaired bythe representative of the Commission.
The representative of the Commission shall submit to the committee a
draft of the measures to be taken. The committee shall deliver itsopinion on the draft, within a time limit which the chairman may laydown according to the urgency of the matter, if necessary by taking avote.
The opinion shall be recorded in the minutes; in addition, each Member
State shall have the right to ask to have its position recorded in theminutes.
The Commission shall take the utmost account of the opinion delivered
by the committee. It shall inform the committee of the manner in whichits opinion has been taken into account.
Article 12
The provisions of this Directive shall be without prejudice to Council
Directive 90/531/EEC of 17 September 1990 on the procurment proce-dure of entities operating in the water, energy, transport and telecommu-nications sectors (
1).
(1) OJ No L 297, 29.10.1990, p. 1.
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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
Before 1 January 1995, the Commission shall submit to the Council a
report on the implementation of this Directive accompanied, if neces-sary, by suitable proposals on continuing Community action to developrailways, in particular in the field of the international transport of
goods.
Article 15
Member States shall, after consultation with the Commission, adopt the
laws, regulations and administrative provisions necessary to comply
with this Directive not later than 1 January 1993. They shall forthwithinform the Commission thereof.
When Member States adopt these provisions, they shall contain a refer-
ence to this Directive or be accompanied by such reference on the occa-sion of their official publication. The methods of making such a refer-
ence shall be laid down by the Member States.
Article 16
This Directive is addressed to the Member States.