1969R1191 — EN — 01.07.1992 — 001.001 — 1
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►B REGULATION (EEC)No 1191/69 OF THE COUNCIL
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
(OJ L 156, 28.6.1969, p. 1)
Amended by:
Official Journal
No page date
►M1Council Regulation (EEC) No 3572/90 of 4 December 1990 L 353 12 17.12.1990
►M2Council Regulation (EEC) No 1893/91 of 20 June 1991 L 169 1 29.6.1991
Amended by:
►A1Act of Accession of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland L 73 14 27.3.1972
(adapted by Council Decision of 1 January 1973) L 2 1 1.1.1973
►A2Act of Accession of Greece L 291 17 19.11.1979
►A3Act of Accession of Spain and Portugal L 302 23 15.11.1985
Corrected by:
►C1Corrigendum, OJ L 999, 1.1.1973, p. 33 (1191/69)
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REGULATION (EEC)No 1191/69 OF THE COUNCIL
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
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Havingreg ard to the Treaty establishingthe European EconomicCommunity, and in particular Articles 75 and 94 thereof;
Havingreg ard to the Council Decision of 13 May 1965 (
1)o nt h e
harmonisation of certain provisions affectingcompetition in transportby rail, road and inland waterway;
Havingreg ard to the proposal from the Commission;Havingreg ard to the Opinion of the European Parliament(
2);
Havingreg ard to the Opinion of the Economic and Social
Committee(3);
Whereas one of the objectives of the common transport policy is to
eliminate disparities liable to cause substantial distortion in the condi-tions inherent in the concept of a public service which are imposed ontransport undertakings by Member States;
Whereas it is therefore necessary to terminate the public service obliga-
tions defined in this Regulation; whereas, however, it is essential incertain cases to maintain such obligations in order to ensure the provi-sion of adequate transport services; whereas the adequacy of transportservices must be assessed in the light of the state of supply and demandin the transport sector and of the needs of the community;
Whereas these termination measures are not to apply to transport rates
and conditions imposed on passenger transport undertakings in theinterests of one or more particular categories of person;
Whereas, for the purpose of implementingthese measures, it is neces-
sary to define the various public service obligations covered by thisRegulation; whereas such obligations include the obligation to operate,the obligation to carry and tariff obligations;
Whereas it should be left to the Member States on their own initiative to
take measures to terminate or to maintain public service obligations;whereas, however, these obligations being such as to entail financialburdens for transport undertakings, the latter must be able to apply fortheir termination to the competent authorities of the Member States;
Whereas it is appropriate to provide that transport undertakings may
apply for the termination of public service obligations only where suchobligations involve them in economic disadvantages determined inaccordance with common procedures defined in this Regulation;
Whereas, in order that standards of operation may be raised, transport
undertakings should be able, when making their applications, to proposethe use of some other form of transport better suited to the traffic inquestion;
Whereas when decidingthe maintenance of public service oblig ations
the competent authorities of Member States must be able to attach totheir decision conditions likely to improve the yield of the operations inquestion; whereas when decidingto terminate a public service oblig a-tion the competent authorities must, however, in order to ensure the
(1) OJ No 88, 24.5.1965, p. 1500/65.
(2) OJ No C 27, 28.3.1966, p. 18.
(3) OJ No C 49, 17.5.1968, p. 15.
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provision of adequate transport services, be able to provide for theintroduction of an alternative service;
Whereas, in order to take account of the interests of all Member States,
a Community procedure should be introduced for cases where thetermination of an obligation to operate or to carry might interfere withthe interests of another Member State;
Whereas it is desirable, in order that the study of applications by
undertakings for the termination of public service obligations may beconducted in a proper manner, that time limits both for the submissionof such applications and for the study thereof by the Member States,should be laid down;
Whereas, pursuant to Article 5 of the Council Decision of 13 May 1965
on the harmonisation of certain provisions affectingcompetition intransport by rail, road and inland waterway, any decision by thecompetent authorities to maintain any public service obligation definedin this Regulation entails an obligation to pay compensation in respectof any financial burdens which may thereby devolve on transport under-takings;
Whereas the right of a transport undertaking to compensation will arise
at the time of the decision by a Member State to maintain the publicservice obligation in question; whereas, however, because budgets aredrawn up on an annual basis such right cannot arise during the initialperiod of operation of this Regulation before 1 January 1971; whereasthis date, may in the event of the time limit for the study of applicationsfrom transport undertakings being extended, likewise be altered to alater date;
Whereas, furthermore, Article 6 of the Council Decision of 13 May
1965 on the harmonisation of certain provisions affectingcompetition intransport by rail, road and inland waterway provides that Member Statesmust make compensation in respect of financial burdens devolvinguponpassenger transport by reason of the application of transport rates andconditions imposed in the interests of one or more particular categoriesof person; whereas such compensation is to operate from 1 January1971; whereas the operative date may, by means of action atCommunity level, be postponed for one year should a Member Statemeet with special difficulties;
Whereas compensation for financial burdens devolvingupon transport
undertakings by reason of the maintenance of public service obligationsmust be made in accordance with common procedures; whereas, inorder to determine the amount of such compensation, the effects whichthe termination of any such obligations would have on the undertaking’sactivities must be taken into account;
Whereas the provisions of this Regulation should be applied to any new
public obligation as defined in this Regulation imposed on a transportundertaking;
Whereas, since compensation payments under this Regulation are to be
granted by Member States in accordance with common procedures laiddown by this Regulation, such payments should be exempted from thepreliminary information procedure laid down in Article 93 (3) of theTreaty establishingthe European Economic Community;
Whereas the Commission must be able to obtain from Member States
all relevant information concerningthe operation of this Reg ulation;
Whereas, in order to enable the Council to study the situation in each
Member State with regard to the implementation of this Regulation, theCommission is to submit a report in this respect to the Council before31 December 1972;
Whereas it is desirable to ensure that appropriate means are made
available by the Member States to transport undertakings in order toenable the latter to make representations concerningtheir interests withregard to individual decisions made by Member States pursuant to thisRegulation;
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Whereas, since this Regulation is at present to apply to rail transportoperations of the six national railway undertakings of the MemberStates and, as regards other transport undertakings, to undertakings notmainly providingtransport services of a local or reg ional character, theCouncil will have to decide within three years from the entry into forceof this Regulation what measures should be taken with regard to publicservice obligations in respect of transport operations not covered by thisRegulation;
HAS ADOPTED THIS REGULATION:
SECTION I
General provisions
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Article 1
1. This Regulation shall apply to transport undertakings which
operate services in transport by rail, road and inland waterway.
Member States may exclude from the scope of this Regulation any
undertakings whose activities are confined exclusively to the operationof urban, suburban or regional services.
2. For the purposes of this Regulation:
— ‘urban and suburban services'means transport services meetingthe
needs of an urban centre or conurbation, and transport needsbetween it and surroundingareas,
— ‘regional services' means transport services operated to meet the
transport needs of a region.
3. The competent authorities of the Member States shall terminate all
obligations inherent in the concept of a public service as defined in thisRegulation imposed on transport by rail, road and inland waterway.
4. In order to ensure adequate transport services which in particular
take into account social and environmental factors and town andcountry planning, or with a view to offering particular fares to certaincategories of passenger, the competent authorities of the Member Statesmay conclude public service contracts with a transport undertaking. Theconditions and details of operation of such contracts are laid down inSection V.
5. However, the competent authorities of the Member States may
maintain or impose the public service obligations referred to in Article 2for urban, suburban and regional passenger transport services. Theconditions and details of operation, includingmethods of compensation,are laid down in Sections II, III and IV.
Where a transport undertakingnot only operates services subject to
public service obligations but also engages in other activities, the publicservices must be operated as separate divisions meetingat least thefollowingconditions:
(a) the operatingaccounts correspondingto each of these activities
shall be separate and the proportion of the assets pertainingto eachshall be used in accordance with the accountingrules in force;
(b) expenditure shall be balanced by operatingrevenue and payments
from public authorities, without any possibility of transfer from orto another sector of the undertaking’s activity.
6. Furthermore, the competent authorities of a Member State may
decide not to apply paragraphs 3 and 4 in the field of passengertransport to the transport rates and conditions imposed in the interests ofone or more particular categories of person.
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Article 2
1. ‘Public service obligations'means obligations which the transport
undertakingin question, if it were consideringits own commercialinterests, would not assume or would not assume to the same extent orunder the same conditions.
2. Public service obligations within the meaning of paragraph 1
consist of the obligation to operate, the obligation to carry and tariffobligations.
3. For the purposes of this Regulation ►
C1‘the obligation to oper-
ate'◄means any obligation imposed upon a transport undertaking to
take, in respect of any route or installations which it is authorised towork by licence or equivalent authorisation, all necessary measures toensure the provision of a transport service satisfyingfixed standards ofcontinuity, regularity and capacity. It also includes any obligation tooperate additional services and any obligation to maintain in goodcondition routes, equipment — in so far as this is surplus to therequirements of the network as a whole — and installations afterservices have been withdrawn.
4. For the purposes of this Regulation, ‘the obligation to carry'means
any obligation imposed upon transport undertakings to accept and carrypassengers or goods at specified rates and subject to specified condi-tions.
5. For the purposes of this Regulation, ‘tariff obligations'means any
obligation imposed upon transport undertakings to apply, in particularfor certain categories of passenger, for certain categories of goods, or oncertain routes, rates fixed or approved by any public authority which arecontrary to the commercial interests of the undertakingand which resultfrom the imposition of, or refusal to modify, special tariff provisions.
The provisions of the foregoing subparagraph shall not apply to obliga-
tions arisingfrom g eneral measures of price policy applyingto theeconomy as a whole or to measures taken with respect to transport ratesand conditions in general with a view to the organisation of the trans-port market or of part thereof.
SECTION II
Common principles for the termination or maintenance of public
service obligations
Article 3
1. Where the competent authorities of the Member States decide to
maintain, in whole or in part, a public service obligation, and where thiscan be done in more than one way, each capable of ensuring, whilesatisfyingsimilar conditions, the provision of adequate transportservices, the competent authorities shall select the way least costly tothe Community.
2. The adequacy of transport services shall be assessed havingreg ard
to:
(a) the public interest;
(b) the possibility of havingrecourse to other forms of transport and the
ability of such forms to meet the transport needs under considera-tion;
(c) the transport rates and conditions which can be quoted to users.
Article 4
1. It shall be for transport undertakings to apply to the competent
authorities of the Member States for the termination in whole or in partof any public service obligation where such obligation entails economicdisadvantages for them.
2. In their applications, transport undertakings may propose the
substitution of some other form for the forms of transport beingused.
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Undertakings shall apply the provisions of Article 5 to calculate what
savings could be made as a means of improving their financial position.
Article 5
1. Any obligation to operate or to carry shall be regarded as
imposingeconomic disadvantag es where the reduction in the financialburden which would be possible as a result of the total or partialtermination of the obligation in respect of an operation or a group ofoperations affected by that obligation exceeds the reduction in revenueresultingfrom that termination.
Economic disadvantages shall be determined on the basis of a state-
ment, actualised if necessary, of the annual economic disadvantagesrepresented by the difference between the reductions in the annualfinancial burden and in annual revenue that would result from termina-tion of the obligation.
However, where the obligation to operate or to carry covers one or more
categories of the passenger or goods traffic on the whole or a substantialpart of a network, the financial burden which would be eliminated byterminatingthe oblig ation shall be estimated by allocatingamongthevarious categories of traffic the total costs borne by the undertaking byreason of its transport activities.
The economic disadvantage will in such case be equal to the difference
between the costs allotable to that part of the undertaking’s activitiesaffected by the public service obligation and the corresponding revenue.
Economic disadvantages shall be determined taking into account the
effects of the obligation on the undertaking’s activities as a whole.
2. A tariff obligation shall be regarded as entailing economic disad-
vantages where the difference between the revenue from the traffic towhich the obligation applies and the financial burden of such traffic isless than the difference between the revenue which would be producedby that traffic and the financial burden thereof if workingwere on acommercial basis — account beingtaken both of the costs of thoseoperations which are subject to the obligation and of the state of themarket.
Article 6
1. Within one year of the date of the entry into force of this Regula-
tion transport undertakings shall lodge with the competent authorities ofthe Member States the applications referred to in Article 4.
Transport undertakings may lodge applications after the expiry of the
aforementioned period if they find that the provisions of Article 4 (1)are satisfied.
2. Decisions to maintain a public service obligation or part thereof,
or to terminate it at the end of a specified period, shall provide forcompensation to be granted in respect of the financial burdens resultingtherefrom; the amount of such compensation shall be determined inaccordance with the common procedures laid down in Articles 10 to 13.
3. The competent authorities of the Member States shall take deci-
sions within one year of the date on which the application is lodged asregards obligations to operate or to carry, and within six months asregards tariff obligations.
The right to compensation shall arise on the date of the decision by the
competent autorities but in any event not before 1 January 1971.
4. However, if the competent authorities of the Member States
consider it necessary by reason of the number and importance of theapplications lodged by each undertaking, they may extend the periodprescribed in the first subparagraph of paragraph 3 until 1 January 1972at the latest. In such a case, the right to compensation shall arise on thatdate.
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Where they intend to avail themselves of this power, the competent
authorities of the Member States shall so inform the undertakingsconcerned within six months followingthe lodg ingof applications.
Should any Member State meet with special difficulties, the Council
may, at the request of that State and on a proposal from the Commis-sion, authorise the State concerned to extend until 1 January 1973 thetime limit indicated in the first subparagraph of this paragraph.
5. If the competent authorities have not reached a decision within the
time limit laid down, the obligation in respect of which the applicationunder Article 4 (1) for termination was made shall stand terminated.
6. The Council shall, on the basis of a report submitted by the
Commission before 31 December 1972, study the situation in eachMember State with regard to the implementation of this Regulation.
Article 7
1. There may be attached to any decision to maintain an obligation,
conditions designed to improve the yield of the operations affected bythe obligation in question.
2. Any decision to terminate an obligation may provide for the
introduction of an alternative service. In such a case termination shallnot take effect until such time as the alternative service has been putinto operation.
Article 8
1. The Member State concerned shall communicate to the Commis-
sion, before implementation, any measure terminatingthe oblig ation tooperate or to carry which it proposes to take in respect of any route ortransport service liable to affect trade or traffic between Member States.If shall inform the other Member States thereof.
2. If the Commission considers it necessary or if another Member
State so requests, the Commission shall consult with the Member Statesconcerningthe proposed measure.
3. The Commission shall, within two months followingreceipt of the
communication referred to in paragraph 1, address an opinion or arecommendation to all Member States concerned.
SECTION III
Application to passenger transport of transport rates and condi-tions imposed in the interests of one or more particular categories
of person
Article 9
1. The amount of compensation in respect of financial burdens
devolving upon undertakings by reason of the application to passengertransport of transport rates and conditions imposed in the interests ofone or more particular categories of person shall be determined inaccordance with the common procedures laid down in Articles 11 to 13.
2. Compensation shall be payable from 1 January 1971.Should any Member State meet with special difficulties, the Council
may, at the request of that State and on a proposal from the Commis-sion, authorise the State concerned to alter that date to 1 January 1972.
3. Applications for compensation shall be lodged with the competent
authorities of the Member States.
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SECTION IV
Common compensation procedures
Article 10
1. The amount of the compensation provided for in Article 6 shall, in
the case of an obligation to operate or to carry, be equal to the differ-ence between the reduction in financial burden and the reduction inrevenue of the undertakingif the whole or the relevant part of theobligation in question were terminated for the period of time underconsideration.
However, where the calculation of economic disadvantage was made by
allocatingamongthe various parts of its transport activities the totalcosts borne by the undertakingin respect of those transport activities,the amount of the compensation shall be equal to the difference betweenthe costs allotable to that part of the undertaking’s activities affected bythe public service obligation and the corresponding revenue.
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Article 11
1. The amount of the compensation provided for in Article 6 and in
Article 9 (1) shall, in the case of a tariff obligation, be equal to thedifference between the two amounts as follows:
(a) The first amount shall be equal to the difference between, on the
one hand, the product of the anticipated number of units of measureof transport and:
— either the most favourable existingrate which mig ht be claimed
by users if the obligation in question did not exist; or,
— where there is no such rate, the rate which the undertaking,
operatingon a commercial basis and takinginto account boththe costs of the operation in question and the state of the market,would have applied;
and, on the other hand, the product of the actual number of units of
measure of transport and the rate imposed for the period under consid-eration.
(b) The second amount shall be equal to the difference between the
costs which would be incurred applyingeither the most favourableexistingrate or the rate which the undertakingwould have appliedif operatingon a commercial basis and the costs actually incurredunder the obligatory rate.
2. Where, by reason of the state of the market, compensation calcu-
lated in accordance with the provisions of paragraph 1 is not sufficientto cover the total costs of the traffic affected by the tariff obligation inquestion, the amount of the compensation provided for in Article 9 (1)shall be equal to the difference between such costs and the revenuefrom such traffic. Any compensation already made under Article 10shall be taken into consideration when makingthis calculation.
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Article 12
Costs resultingfrom the maintenance of oblig ations shall be calculated
on the basis of efficient management of the undertaking and the provi-sion of transport services of an adequate quality.
Interest relatingto own capital may be deducted from the interest taken
into account in the calculation of costs.
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Article 13
1. Decisions taken under Articles 6 and 9 shall fix in advance the
amount of compensation for a period of at least one year. At the sametime they shall determine the factors which might warrant an adjustmentof that amount.
2. Adjustment of the amount referred to in paragraph 1 shall be made
each year, after closure of the annual accounts of the undertakinginquestion.
3. Payment of compensation fixed in advance shall be made by
instalments. The payment of any sums due by reason of the adjustmentprovided for in paragraph 2 shall be made immediately after the amountof the adjustment has been determined.
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SECTION V
Public service contracts
Article 14
1. ‘A public service contract' shall mean a contract concluded
between the competent authorities of a Member State and a transportundertakingin order to provide the public with adequate transportservices.
A public service contract may cover notably:
— transport services satisfyingfixed standards of continuity, reg ularity,
capacity and quality,
— additional transport services,— transport services at specified rates and subject to specified condi-
tions, in particular for certain categories of passenger or on certainroutes,
— adjustments of services to actual requirements.
2. A public service contract shall cover, inter alia , the following
points:
(a) the nature of the service to be provided, notably the standards of
continuity, regularity, capacity and quality;
(b) the price of the services covered by the contract, which shall either
be added to tariff revenue or shall include the revenue, and detailsof financial relations between the two parties;
(c) the rules concerningamendment and modification of the contract, in
particular to take account of unforeseeable changes;
(d) the period of validity of the contract;
(e) the penalties in the event of failure to comply with the contract.
3. Those assets involved in the provision of transport services which
are the subject of a public service contract may belongto the under-takingor be placed at its disposal.
4. Any undertakingwhich intends to discontinue or make substantial
modifications to a transport service which it provides to the public on acontinuous and regular basis and which is not covered by the contractsystem or the public service obligation shall notify the competentauthorities of the Member State thereof at least three months inadvance.
The competent authorities may decide to waive such notification.This provision shall not affect other national procedures applicable as
regards entitlement to terminate or modify transport services.
5. After receivingthe information referred to in parag raph 4 the
competent authorities may insist on the maintenance of the serviceconcerned for up to one year from the date of notification and they shallinform the undertakingat least one month before the expiry of thenotification.
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They may also take the initiative of negotiating the establishment or
modification of such a transport service.
6. Expenditure arising for transport undertakings from the obligations
referred to in paragraph 5 shall be compensated in accordance with thecommon procedures laid down in Sections II, III and IV.
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SECTION VI
Final provisions
Article 15
Decisions made by the competent authorities of Member States in
accordance with the provisions of this Regulation, shall state the reasonson which they are based and shall be published in the appropriatemanner.
Article 16
Member States shall ensure that transport undertakings, in their capacity
as transport undertakings, are given the opportunity to make representa-tions concerningtheir interests, by appropriate means, with reg ard todecisions taken pursuant to this Regulation.
Article 17
1. The Commission may request Member States to supply all rele-
vant information concerningthe operation of this Reg ulation. Wheneverit considers it necessary, the Commission shall consult with the MemberStates concerned.
2. Compensation paid pursuant to this Regulation shall be exempt
from the preliminary information procedure laid down in Article 93 (3)of the Treaty establishingthe European Economic Community.
Member States shall promptly forward to the Commission details, clas-
sified by category of obligation, of compensation payments made inrespect of financial burdens devolvingupon transport undertaking s byreason of the maintenance of the public service obligations set out inArticle 2 or by reason of the application to passenger transport oftransport rates and conditions imposed in the interests of one or moreparticular categories of person.
Article 18
1. Member States shall, after consultingthe Commission and in g ood
time, adopt such laws, regulations or administrative provisions as maybe necessary for the implementation of this Regulation and in particularof Article 4 thereof.
2. Where a Member State so requests, or where the Commission
considers it appropriate, the Commission shall consult with the MemberStates concerned upon the proposed terms of the measures referred to inparagraph 1.
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Article 20
This Regulation shall enter into force on 1 July 1969.
This Regulation shall be binding in its entirety and directly applicable in
all Member States.