OPINION OF THE COMMISSION pursuant to Article 251 (2) (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a DIRECTIVE 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 and safety certification AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the EC Treaty

1. Historical background of the proposal

On 22nd July 1998 the Commission adopted a proposal [1] for a Council directive on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification.

[1] COM(1998) 480 final 22.07.1998.

On 29th September 1998 the Commission submitted this proposal to the Council [1998/0267(COD)].

At its plenary session of 10th March 1999, the European Parliament approved the proposal subject to amendments. After the entry into force of the Amsterdam Treaty on 1st May 1999, the Parliament had to re-approve its first reading. The European Parliament finally approved the Commission's proposal at its plenary session on 15th September 1999.

The Economic and Social Committee adopted it opinion on 26th May 1999 [2].

[2] OJ C 209, 22.07.1999, p. 22.

On 25th November 1999 the Commission adopted an amended proposal following the first reading of the European Parliament [3].

[3] COM (1999) 616 final

At its session on 9th and 10th December 1999 the Council reached a political agreement on the proposal in view of the adoption of a Common Position.

At its session on 28th March 2000 the Council adopted the Common Position [4], which was presented to the European Parliament during its plenary session on 13th April 2000.

[4] OJ C 178, 27.06.2000, p. 29

At its plenary session on 5th July 2000 the Parliament approved the common position subject to amendments.

2. Background of the Commission's proposals

Note: The proposal dealt with in this Communication forms part of the so-called "infrastructure package" consisting of a proposal [5] for a Council directive amending Directive 91/440/EEC on the development of the Community's railways [6], a Council Directive amending Directive 95/18/EC on the licensing of railway undertakings [7] and the proposal for a Council Directive on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification.

[5] COM(1998) 480 final 22.07.1998.

[6] Council Directive 91/440/EEC of 29 July 1991, O.J. L237, 24.08.1991, p.25.

[7] OJ L 143, 27.06.1995, p. 70.

With this proposal the Commission intended to define the principles governing the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure in view of ensuring market transparency and efficiency of infrastructure provision. This proposal complements the proposals for further market opening contained in the suggested amendments of Directive 91/440/EEC on the development of Community railways.

3. Modifications introduced into the text in relation to the common position adopted by the Council [8]

[8] Numbering and order of amendments follows document A5-171/2000 (EP minutes of 5/7/2000, provisional edition)

3.1. Rejected Amendments

3.1.1. Charging principles Amendments 6 (Article 7(1)), 8 (Article 7(5)), 10 (Article 8 (1)

The Commission always underlined that one of the final goals of its transport policy is to foster a fair and efficient infrastructure pricing systems. The objectives are to provide the incentives for an optimal use of existing infrastructure and for appropriate investment in new infrastructure. Furthermore, the charging schemes should ensure a level playing field across transport modes.

Any systematic deviation from the principle of marginal cost pricing would have negative impacts on the efficiency incentives an infrastructure charging scheme would provide to market actors. Additionally, many European railway undertakings are unlikely to be able to bear a full recovery of the costs of business and maintenance of existing facilities.

If a Member State wishes full recovery of the costs incurred by the infrastructure manager, the set of allowed mark ups should be well defined in order to avoid large tariff differentials threatening the competitiveness of rail, in particular of international rail freight. The Commission considers that the compromise found by the Council in its Common Position well balances the various positions on the charging principles and therefore wishes to maintain its formulations.

The Commission therefore rejects the amendments concerned.

3.1.2. Derogations for various Member States Amendments 3 (Recital 46) and 18 (Article 33)

The Commission agrees with the European Parliament that the principle "one law for everybody" should be applied as much as possible but finds the derogations proposed well balanced and proportionate. The Commission wishes to underline that the derogations are limited in time.

The Commission therefore rejects the amendments concerned.

3.1.3. Scope of undertakings that are allowed access to rail infrastructure (applications) Amendment 15 (Article 16 (1))

The reference to Article 2(b) would create ambiguity as to the scope of undertakings that are allowed access to rail infrastructure. It could be interpreted that also other applicants would have the right to make applications in all Community countries.

The Commission therefore rejects the amendment concerned.

3.1.4. Giving priority to public-benefit transport services in allocating rail capacity Amendment 12 (Article 14, paragraph 1a (new))

The amendment implies the possibility to provide railway operators with compensation for financial losses arising from the fact that in some Member States a certain rail capacity must be allocated in the interest of public transport services. However, this would not be conform to the aim of this Directive. It is rather to establish a level playing field across modes and various rail service types. The issue of public service obligations should rather be subject of a separate regulatory initiative on public service in land transport. Additionally, it should be recalled that the Directive foresees in its article 22 that priority criteria can be employed to allocate congested infrastructure capacity.

The Commission therefore rejects the amendment concerned.

3.1.5. Need to increase investment in rail infrastructure capacity Amendment 2 (Recital 40a (new))

Although the statement made in this amendment may be correct, the Commission does not see a clear link with the objectives of the Directive under consideration.

The Commission therefore rejects the amendment concerned.

3.1.6. Up-to-date register of undertakings or public entities to whom capacity has been allocated Amendment 11 (Article 12)

Although such a register may increase the transparency of the allocation process, the information to be published could be considered commercially sensitive. Anyway, in the case od a complaint this information could be made available to the public authorities handling the complaint.

The Commission therefore rejects the amendment concerned.

3.2. Accepted amendments

The Commission accepts amendment 22 (Article 2 (b)), if another wording for the amendment and a more appropriate place in the Directive can be agreed on. The term "access rights" should be replaced by "train paths".

The Commission accepts amendment 9 (Article 7 (6a) (new), if the term "infrastructure manager" is replaced by the term "appropriate body".

The Commission also accepts amendments 5 (Article 4(2)), 7 (Article 7(3)), 13 (Article 14 (2)), 14 (Article 15 (4)), 16 (Article 17 (5)) and 17 (Article 31).

4. Conclusion

Under the terms of Article 250(2) of the EC Treaty, the Commission amends its proposal according to the above.