Common position (EC) No 28/2000

adopted by the Council on 28 March 2000

with a view to adopting Directive 2000/.../EC of the European Parliament and of the Council of ... on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification

(2000/C 178/03)

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(1),

Having regard to the opinion of the Economic and Social Committee(2),

Having regard to the opinion of the Committee of the Regions(3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty(4),

Whereas:

(1) Greater integration of the Community railway sector is an essential element of the completion of the internal market and moving towards achieving sustainable mobility.

(2) Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways(5) provides for certain access rights in international rail transport for railway undertakings and international groupings of railway undertakings; these rights mean that railway infrastructure can be used by multiple users.

(3) Council Directive 95/19/EC of 19 June 1995 on the allocation of railway infrastructure capacity and the charging of infrastructure fees(6) set out a broad framework for the allocation of railway infrastructure capacity.

(4) Those Directives have not prevented a considerable variation in the structure and level of railway infrastructure charges and the form and duration of capacity-allocation processes.

(5) To ensure transparency and non-discriminatory access to rail infrastructure for all railway undertakings all the necessary information required to use access rights are to be published in a network statement.

(6) Appropriate capacity-allocation schemes for rail infrastructure coupled with competitive operators will result in a better balance of transport between modes.

(7) Encouraging optimal use of the railway infrastructure will lead to a reduction in the cost of transport to society.

(8) An efficient freight sector, especially across borders, requires action for the opening up of the market.

(9) It should be possible for Member States to allow purchasers of railway services to enter the capacity-allocation process directly.

(10) The revitalisation of European railways by means of extended access for international freight on the trans-European rail freight network requires fair intermodal competition between rail and road, particularly by taking appropriate account of the different external effects; appropriate charging schemes for rail infrastruture coupled with appropriate charging schemes for other transport infrastructures and competitive operators will result in an optimal balance of different transport modes.

(11) The charging and capacity-allocation schemes should permit equal and non-discriminatory access for all undertakings and attempt as far as possible to meet the needs of all users and traffic types in a fair and non-discriminatory manner.

(12) Within the framework set out by Member States charging and capacity-allocation schemes should encourage railway infrastructure managers to optimise use of their infrastructure.

(13) Railway undertakings should receive clear and consistent signals from capacity-allocation schemes which lead them to make rational decisions.

(14) In order to take into account the needs of users, or potential users, of railway infrastructure capacity to plan their business, and to the needs of customers and funders, it is important that the infrastructure manager ensures that infrastructure capacity is allocated in a way which reflects the need to maintain and improve service reliability levels.

(15) It is desirable for railway undertakings and the infrastructure manager to be provided with incentives to minimise disruption and improve performance of the network.

(16) Charging and capacity-allocation schemes should allow for fair competition in the provision of railway services.

(17) It is important to have regard to the business requirements of both applicants and the infrastructure manager.

(18) It is important to maximise the flexibility available to the infrastructure managers with regard to the allocation of infrastructure capacity, but this must be consistent with satisfaction of the applicant's reasonable requirements.

(19) The capacity-allocation process must prevent the imposition of undue constraints on the wishes of other undertakings holding, or intending to hold, rights to use the infrastructure to develop their business.

(20) It is desirable to grant some degree of flexibility to infrastructure managers to enable a more efficient use to be made of the infrastructure network.

(21) Capacity-allocation and charging schemes may need to take account of the fact that different components of the rail infrastructure network may have been designed with different principal users in mind.

(22) The requirements for passenger services may often conflict with the requirements for freight; the requirements for passenger services may result in a network which is more costly to build and maintain than one designed solely for freight; the increasing speed differential between freight and passenger rolling stock can lead to an exacerbation of the conflict between these two types of traffic.

(23) Different users and types of users will frequently have a different impact on infrastructure capacity and the needs of different services need to be properly balanced.

(24) Services operated under contract to a public authority may require special rules to safeguard their attractiveness to users.

(25) The charging and capacity-allocation schemes must take account of the effects of increasing saturation of infrastructure capacity and ultimately the scarcity of capacity.

(26) The different time-frames for planning traffic types mean that it is desirable to ensure that requests for infrastructure capacity which are made after the completion of the timetabling process can be satisfied.

(27) The use of information technology can enhance the speed and responsiveness of the timetabling process and improve the ability of applicants to bid for infrastructure capacity, as well as improving the ability to establish train paths which cross more than one infrastructure manager's network.

(28) To ensure the optimum outcome for railway undertakings, it is desirable to require an examination of the use of infrastructure capacity when the coordination of requests for capacity is required to meet the needs of users.

(29) In view of the monopolistic position of the infrastructure managers, it is desirable to require an examination of the available infrastructure capacity and methods of enhancing it when the capacity-allocation process is unable to meet the requirements of users.

(30) A lack of information about other railway undertakings' requests as well as about the constraints within the system may make it difficult for railway undertakings to seek to optimise their infrastructure capacity requests.

(31) It is important to ensure the better coordination of allocation schemes so as to ensure the improved attractiveness of rail for traffic which uses the network of more than one infrastructure manager, in particular for international traffic.

(32) It is important to minimise the distortions of competition which may arise, either between railway infrastructures or between transport modes, from significant differences in charging principles.

(33) It is desirable to define those components of the infrastructure service which are essential to enable an operator to provide a service and which should be provided in return for minimum access charges.

(34) Investment in railway infrastructure is desirable and infrastructure charging schemes should provide incentives for infrastructure managers to make appropriate investments where they are economically attractive.

(35) Any charging scheme will send economic signals to users. It is important that those signals to railway undertakings should be consistent and lead them to make rational decisions.

(36) To enable the establishment of appropriate and fair levels of infrastructure charges, infrastructure managers need to record and establish the valuation of their assets and develop a clear understanding of cost factors in the operation of the infrastructure.

(37) It is desirable to ensure that account is taken of external costs when making transport decisions.

(38) It is important to ensure that charges for international traffic are such as to permit rail to meet the needs of the market, consequently infrastructure charging should be set at the cost that is directly incurred as a result of operating the train service.

(39) The overall level of cost recovery through infrastructure charges affects the necessary level of government contribution; Member States may require different levels of overall cost recovery through charges including mark-ups or a rate of return which the market can bear while balancing cost recovery with intermodal competitiveness of rail freight. However, it is desirable for any infrastructure charging scheme to enable traffic to use the rail network which can at least pay for the additional cost which it imposes.

(40) A railway infrastructure is a natural monopoly. It is therefore necessary to provide infrastructure managers with incentives to reduce costs and manage their infrastructure efficiently.

(41) Discounts which are allowed to railway undertakings must relate to actual administrative cost savings experienced; discounts may also be used to promote the efficient use of infrastructure.

(42) It is desirable for railway undertakings and the infrastructure manager to be provided with incentives to minimise disruption of the network.

(43) The allocation of capacity is associated with a cost to the infrastructure manager, payment for which should be required.

(44) Measures are needed to ensure that all railway undertakings licensed under Community law are required to hold an appropriate safety certificate before operating on the territory of a Member State; the granting of safety certificates must comply with Community law.

(45) The efficient management and fair and non-discriminatory use of rail infrastructure require the establishment of a regulatory body that oversees the application of these Community rules and acts as an appeal body, notwithstanding the possibility of judicial review.

(46) Specific measures are required to take account of the specific geopolitical and geographical situation of certain Member States as well as a specific organisation of the railway sector in various Member States while ensuring the integrity of the internal market.

(47) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementation powers conferred on the Commission(7).

(48) In accordance with the principles of subsidiarity and proportionality as set out in Article 5 of the Treaty, the objectives of this Directive, namely to coordinate arrengements in the Member States governing the allocation of railway infrastructure capacity and the charges made for the use thereof as well as safety certification, cannot be sufficiently achieved by the Member States in view of the need to ensure fair and non-discriminatory terms for access to the infrastructure as well as to take account of the manifestly international dimensions involved in the operation of significant elements of the railway networks, and can therefore, by reason of the need for coordinated transnational action, be better achieved by the Community. This Directive does not go beyond what is necessary to achieve those objectives.

(49) Council Regulation (EEC) No 2830/77 of 12 December 1977 on the measures necessary to achieve comparability between the accounting systems and annual accounts of railway undertakings(8), Council Regulation (EEC) No 2183/78 of 19 September 1978 laying down uniform costing principles for railway undertakings(9), Council Decision 82/529/EEC of 19 July 1982 on the fixing of rates for the international carriage of goods by rail(10), Council Decision 83/418/EEC of 25 July 1983 on the commercial independence of the railway in the management of their international passenger and luggage traffic(11), and Directive 95/19/EC are superseded by this Directive and should therefore be repealed,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

INTRODUCTORY PROVISIONS

Article 1

Scope

1. This Directive 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.

Member States shall ensure that charging and capacity-allocation schemes for railway infrastructure follow the principles set down in this Directive and thus allow the infrastructure manager to market and make optimum effective use of the available infrastructure capacity.

2. This Directive applies to the use of railway infrastructure for domestic and international rail services.

3. Member States may exclude from the scope of this Directive:

(a) stand-alone local and regional networks for passenger services on railway infrastructure;

(b) networks intended only for the operation or urban or suburban passenger services;

(c) regional networks which are used for regional freight services solely by a railway undertaking that is not covered by the scope of Directive 91/440/EEC until capacity on that network is requested by another applicant;

(d) privately-owned railway infrastructure that exists solely for use by the infrastructure owner for its own freight operations.

4. Transport operations in the form of shuttle services for road vehicles through the Channel Tunnel are excluded from the scope of this Directive.

Article 2

Definitions

For the purpose of this Directive:

(a) "allocation" means the allocation of railway infrastructure capacity by an infrastructure manager;

(b) "applicant" means a licensed railway undertaking and/or an international grouping of railway undertakings, and, in Member States which provide for such a possibility, other persons and/or legal entities with public service or commercial interest in procuring infrastructure capacity, such as public authorities under Regulation (EEC) No 1191/69(12) and shippers, freight forwarders and combined-transport operators, for the operation of railway service on their respective territories;

(c) "congested infrastructure" means a section of infrastructure for which demand for infrastructure capacity cannot be fully satisfied during certain periods even after coordination of the different requests for capacity;

(d) "capacity-enhancement plan" means a measure or series of measures with a calendar for their implementation which are proposed to alleviate the capacity constraints leading to the declaration of a section of infrastructure as "congested infrastructure";

(e) "coordination" means the process through which the allocation body and applicants will attempt to resolve situations in which there are conflicting applications for infrastructure capacity;

(f) "framework agreement" means a legally binding general agreement on the basis of public or private law, setting out the rights and obligations of an applicant and the infrastructure manager or the allocation body in relation to the infrastructure capacity to be allocated and the charges to be levied over a period longer than one working timetable period;

(g) "infrastructure capacity" means the potential to schedule train paths requested for an element of infrastructure for a certain period;

(h) "infrastructure manager" means any body or undertaking that is responsible in particular for establishing and maintaining railway infrastructure. This may also include the management of infrastructure control and safety systems. The functions of the infrastructure manager on a network or part of a network may be allocated to different bodies or undertakings;

(i) "network" means the entire railway infrastructure owned and/or managed by an infrastructure manager;

(j) "network statement" means the statement which sets out in detail the general rules, deadlines, procedures and criteria concerning the charging and capacity-allocation schemes. It shall also contain such other information as is required to enable application for infrastructure capacity;

(k) "railway undertaking" means any public or private undertaking, licensed according to applicable Community legislation, the principal business of which is to provide services for the transport of goods and/or passengers by rail with a requirement that the undertaking must ensure traction; this also includes undertakings which provide traction only;

(l) "train path" means the infrastructure capacity needed to run a train between two places over a given time period;

(m) "working timetable" means the data defining all planned train and rolling-stock movements which will take place on the relevant infrastructure during the period for which it is in force.

Article 3

Network statement

1. The infrastructure manager shall, after consultation with the interested parties, develop and publish a network statement obtainable against payment of a duty which may not exceed the cost of publishing that statement.

2. The network statement shall set out the nature of the infrastructure which is available to railway undertakings. It shall contain information setting out the conditions for access to the relevant railway infrastructure. The content of the network statement is laid down in Annex I.

3. The network statement shall be kept up to date and modified as necessary.

4. The network statement shall be published no less than four months in advance of the deadline for requests for infrastructure capacity.

CHAPTER II

INFRASTRUCTURE CHARGES

Article 4

Establishing, determining and collecting charges

1. Member States shall establish a charging framework while respecting the management independence laid down in Article 4 of Directive 91/440/EEC.

Subject to the said condition of management independence, Member States shall also establish specific charging rules or delegate such powers to the infrastructure manager. The determination of the charge for the use of infrastructure and the collection of this charge shall be performed by the infrastructure manager.

2. Where the infrastructure manager, in its legal form, organisation or decision-making functions, is not independent of any railway undertaking, the functions, described in this chapter, other than collecting the charges shall be performed by a charging body that is independent in its legal form, organisation and decision-making from any railway undertaking.

This paragraph shall not apply to Member States which have established a rail regulator in accordance with Article 6(4) of Directive 91/440/EEC; in this case Article 6(5) of the same Directive shall apply accordingly.

3. Infrastructure managers shall cooperate to achieve the efficient operation of train services which cross more than one infrastructure network. They shall in particular aim to guarantee the optimum competitiveness of international rail freight and ensure the efficient utilisation of the trans-European rail freight network. They may establish such joint organisations as are appropriate to enable this to take place. Any cooperation or joint organisation shall be bound by the rules set out in this Directive.

4. Except where specific arrangements are made under Article 8(2), infrastructure managers shall ensure that the charging scheme in use is based on the same principles over the whole of their network.

5. Infrastructure managers shall ensure that the application of the charging scheme results in equivalent and non-discriminatory charges for different railway undertakings that perform services of equivalent nature in a similar part of the market and that the charges actually applied comply with the rules laid down in the network statement.

6. An infrastructure manager or charging body shall respect the commercial confidentiality of information provided to it by applicants.

Article 5

Services

1. Railway undertakings shall, on a non-discriminatory basis, be entitled to the minimum access package and track access to service facilities that are described in Annex II. The supply of services referred to in Annex II, point 2, shall be provided in a non-discriminatory manner and requests by railway undertakings may only be rejected if viable alternatives under market conditions exist. If the services are not offered by one infrastructure manager, the provider of the "main infrastructure" shall use all reasonable endeavours to facilitate the provision of these services.

2. Where the infrastructure manager offers any of the range of services described in Annex II, point 3, as additional services it shall supply them upon request to a railway undertaking.

3. Railway undertakings may request a further range of ancillary services, listed in Annex II, point 4, from the infrastructure manager or from other suppliers. The infrastructure manager is not obliged to supply these services.

Article 6

Infrastructure cost and accounts

1. Member States shall lay down conditions, including where appropriate advance payments, to ensure that, under normal business conditions and over a reasonable time period, the accounts of an infrastructure manager shall at least balance income from infrastructure charges, surpluses from other commercial activities and State funding on the one hand, and infrastructure expenditure on the other.

Within the charging framework of Articles 7 and 8, a Member State may require the infrastructure manager to balance his accounts without State funding.

2. Infrastructure managers shall, with due regard to safety and to maintaining and improving the quality of the infrastructure service, be provided with incentives to reduce the costs of provision of infrastructure and the level of access charges.

3. Member States shall ensure that the provision set out in paragraph 2 is implemented, either through a contractual agreement between the competent authority and infrastructure manager covering a period of not less than three years which provides for State funding or through the establishment of appropriate regulatory measures with adequate powers.

4. Where a contractual agreement exists, the terms of the contract and the structure of the payments agreed to provide funding to the infrastructure manager shall be agreed in advance to cover the whole of the contract period.

5. A method for apportioning costs shall be established. Member States may require prior approval. This method should be updated from time to time to the best international practice.

Article 7

Principles of charging

1. Charges for the use of railway infrastructure shall be paid to the infrastructure manager and used to fund its business.

2. Member States may require the infrastructure manager to provide all necessary information on the charges imposed. The infrastructure manager must, in this regard, be able to justify that infrastructure charges actually invoiced to each operator, pursuant to Articles 4 to 12, comply with the methodology, rules and, where applicable, scales laid down in the network statement.

3. Without prejudice to paragraph 4 or 5 or to Article 8, the charges for the minimum access package and track access to service facilities shall be set at the cost that is directly incurred as a result of operating the train service. The supply of services referred to in Annex II, point 2, shall not be covered by this Article.

4. The infrastructure charge may include a charge which reflects the scarcity of capacity of the identifiable segment of the infrastructure during periods of congestion.

5. The infrastructure charge may be modified to take account of the cost of the environmental effects caused by the operation of the train. Such a modification shall be differentiated according to the magnitude of the effect caused. In the absence of any comparable level of charging of environmental costs in other competing modes of transport, such modification shall not result in any overall change in revenue to the infrastructure manager. If a comparable level of charging of environmental costs has been introduced for rail and competing modes of transport and that generates additional revenue, it shall be for Member States to decide how the revenue shall be used.

6. To avoid undesirable disproportionate fluctuations, the charges referred to in paragraphs 3, 4 and 5 may be averaged over a reasonable spread of train services and times. Nevertheless, the relative magnitudes of the infrastructure charges shall be related to the costs attributable to the services.

7. Where services listed in Annex II, points 3 and 4, as additional and ancillary services are offered only by one supplier the charge imposed for such a service shall relate to the cost of providing it, calculated on the basis of the actual level of use.

8. Charges may be levied for capacity used for the purpose of infrastructure maintenance. Such charges shall not exceed the net revenue loss to the infrastructure manager caused by the maintenance.

Article 8

Exceptions to charging principles

1. Where a Member State wishes full recovery of the costs incurred by the infrastructure manager it may, if the market can bear this, levy mark-ups on the basis of efficient, transparent and non-discriminatory principles, while guaranteeing optimum competitiveness in particular of international rail freight. The charging system should respect the productivity increases achieved by railway undertakings.

Without prejudice to the principles referred to in the first subparagraph only the following options for levying mark-ups can be used: mark-ups for individual market segments, individually negotiated contracts, and a system of fixed and variable charges. However, in market segments which can pay overall at least the cost that is directly incurred as a result of operating the train service plus a rate of return which the market can bear, that market segment shall not be prevented from utilising infrastructure capacity.

2. For specific investment projects, in the future, or that have been completed not more than 15 years before the entry into force of this Directive, the infrastructure manager may set or continue to set higher charges on the basis of the long-term costs of such projects if they increase efficiency and/or cost-effectiveness and could not otherwise be or have been undertaken. Such a charging arrangement may also incorporate agreements on the sharing of the risk associated with new investments.

3. To prevent discrimination, it shall be ensured that any given infrastructure manager's average and marginal charges for equivalent uses of its infrastructure are comparable and that comparable services in the same market segment are subject to the same charges. The infrastructure manager shall show in the network statement that the charging system meets these requirements in so far as this can be done without disclosing confidential business information.

4. If an infrastructure manager intends to modify the essential elements of the charging system referred to in paragraph 1, it shall make them public at least three months in advance.

Article 9

Discounts

1. Without prejudice to Articles 81, 82, 86 and 87 of the Treaty and notwithstanding Article 7(3) of this Directive, any discount on the charges levied on a railway undertaking by the infrastructure manager, for any service, shall comply with the criteria set out in this Article.

2. With the exception of paragraph 3, discounts shall be limited to the actual saving of the administrative cost to the infrastructure manager. In determining the level of discount, no account may be taken of cost savings already internalised in the charge levied.

3. Infrastructure managers may introduce schemes available to all users of the infrastructure, for specified traffic flows, granting time-limited discounts to encourage the development of new rail services, or discounts encouraging the use of considerably underutilised lines.

4. Discounts may relate only to charges levied for a specified infrastructure section.

5. Similar discount schemes shall apply for similar services.

Article 10

Compensation schemes for unpaid environmental, accident and infrastructure costs

1. Member States may put in place a time-limited compensation scheme for the use of railway infrastructure for the demonstrably unpaid environmental, accident and infrastructure costs of competing transport modes in so far as these costs exceed the equivalent costs of rail.

2. Where an operator receiving compensation enjoys an exclusive right, the compensation must be accompanied by comparable benefits to users.

3. The methodology used and calculations performed must be publicly available. it shall in particular be possible to demonstrate the specific uncharged costs of the competing transport infrastructure that are avoided and to ensure that the scheme is granted on non-discriminatory terms to undertakings.

4. Member States shall ensure that such a scheme is compatible with Articles 73, 87 and 88 of the Treaty.

Article 11

Performance scheme

1. Infrastructure charging schemes shall through a performance scheme encourage railway undertakings and the infrastructure manager to minimise disruption and improve the performance of the railway network. This may include penalties for actions which disrupt the operation of the network, compensation for undertakings which suffer from disruption and bonuses that reward better than planned performance.

2. The basic principles of the performance scheme shall apply throughout the network.

Article 12

Reservation charges

Infrastructure managers may levy an appropriate charge for capacity that is requested but not used. This charge shall provide incentives for efficient use of capacity.

CHAPTER III

ALLOCATION OF INFRASTRUCTURE CAPACITY

Article 13

Capacity rights

1. Infrastructure capacity shall be allocated by an infrastructure manager and, once allocated to an applicant, may not be transferred by the recipient to another undertaking or service. The use of capacity by a railway undertaking when carrying out the business of an applicant who is not a railway undertaking shall not be considered a transfer.

2. The right to use specific infrastructure capacity in the form of a train path may be granted to applicants for a maximum duration of one working timetable period.

An infrastructure manager and an applicant may enter into a framework agreement as laid down in Article 17 for the use of capacity on the relevant railway infrastructure for a longer term than one working-timetable period.

3. The definition of respective rights and obligations between infrastructure managers and applicants in respect of any allocation of capacity shall be laid down in contracts or legislation.

Article 14

Capacity allocation

1. Member States may establish a framework for the allocation of infrastructure capacity while respecting the management independence laid down in Article 4 of Directive 91/440/EEC. Specific capacity-allocation rules shall be established. The infrastructure manager shall perform the capacity allocation processes. In particular, the infrastructure manager shall ensure that infrastructure capacity is allocated on a fair and non-discriminatory basis and in accordance with Community law.

2. Where the infrastructure manager, in its legal form, organisation or decision-making functions is not independent of any railway undertaking, the functions referred to in paragraph 1 and described in this chapter shall be performed by an allocation body that is independent in its legal form, organisation and decision-making from any railway undertaking.

This paragraph shall not apply to Member States which have established a rail regulator in accordance with Article 6(4) of Directive 91/440/EEC; in this case Article 6(5) of the same Directive shall apply accordingly.

3. Infrastructure managers and allocation bodies shall respect the commercial confidentiality of information provided to them.

Article 15

Cooperation in the allocation of infrastructure capacity on more than one network

1. Infrastructure managers shall cooperate to enable the efficient creation and allocation of infrastructure capacity which crosses more than one network. They shall organise international train paths, in particular within the framework of the trans-European rail freight network. They shall establish such procedures as are appropriate to enable this to take place. These procedures shall be bound by the rules set out in this Directive.

The procedure established in order to coordinate the allocation of infrastructure capacity at an international level shall associate representatives of infrastructure managers for all railway infrastructures whose allocation decisions have an impact on more than one other infrastructure manager. Appropriate representatives of infrastructure managers from outside the Community may be associated with these procedures. The Commission shall be informed and invited to attend as an observer.

2. At any meeting or other activity undertaken to permit the allocation of infrastructure capacity for transnetwork train services, decisions shall only be taken by representatives of infrastructure managers.

3. The participants in the cooperation referred to in paragraph 1 shall ensure that its membership, methods of operation and all relevant criteria which are used for assessing and allocating infrastructure capacity be made publicly available.

4. Working in cooperation as referred to in paragraph 1, infrastructure managers may assess the need for, and may where necessary organise and propose international train paths to facilitate the operation of freight trains which are subject to an ad hoc request as referred to in Article 23.

Such prearranged international train paths shall be made available to applicants via any of the participating infrastructure managers.

Article 16

Applicants

1. Applications for infrastructure capacity may be made by railway undertakings and their international groupings. Member States may also allow other applicants to apply for infrastructure capacity on their territories.

2. The infrastructure manager may set requirements with regard to applicants to ensure that its legitimate expectations about future revenues and utilisation of the infrastructure are safeguarded. Such requirements shall be appropriate, transparent and non-discriminatory. The requirements shall be published as part of the allocation principles in the network statement, and the Commission shall be informed.

3. The requirements in paragraph 2 may only include the provision of a financial guarantee that must not exceed an appropriate level which shall be proportional to the contemplated level of activity of the applicant, and assurance of the capability to prepare compliant bids for infrastructure capacity.

Article 17

Framework agreements

1. Without prejudice to Articles 81, 82 and 86 of the Treaty, a framework agreement may be concluded with an applicant. Such a framework agreement specifies the characteristics of the infrastructure capacity required by and offered to the applicant over a period of time exceeding one working timetable period. The framework agreement shall not specify a train path in detail, but should be such as to seek to meet the legitimate commercial needs of the applicant. A Member State may require prior approval of such a framework agreement by the regulatory body referred to in Article 30 of this Directive.

2. Framework agreements shall not be such as to preclude the use of the relevant infrastructure by other applicants or services.

3. A framework agreement shall allow for the amendment or limitation of its terms to enable better use to be made of the railway infrastructure.

4. The framework agreement may contain penalties should it be necessary to modify or terminate the agreement.

5. Framework agreements shall in principle be for a period of five years. 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.

6. While respecting commercial confidentiality, the general nature of each framework agreement shall be made available to any interested party.

Article 18

Schedule for the allocation process

1. The infrastructure manager shall adhere to the schedule for capacity allocation set out in Annex III.

2. Infrastructure managers shall agree with the other relevant infrastructure managers concerned which international train paths are to be included in the working timetable, before commencing consultation on the draft working timetable. Adjustments shall only be made if absolutely necessary.

Article 19

Application

1. Applicants may apply on the basis of public or private law to the infrastructure manager to request an agreement granting rights to use railway infrastructure against a charge as provided for in Chapter II.

2. Requests relating to the regular working timetable must adhere to the deadlines set out in Annex III.

3. An applicant who is a party to a framework agreement shall apply in accordance with that agreement.

4. Applicants may request infrastructure capacity crossing more than one network by applying to one infrastructure manager. That infrastructure manager shall then be permitted to act on behalf of the applicant to seek capacity with the other relevant infrastructure managers.

5. Infrastructure managers shall ensure that, for infrastructure capacity crossing more than one network, applicants may apply direct to any joint body which the infrastructure managers may establish.

Article 20

Scheduling

1. The infrastructure manager shall as far as is possible meet all requests for infrastructure capacity including requests for train paths crossing more than one network, and shall as far as possible take account of all constraints on applications, including the economic effect on their business.

2. The infrastructure manager may give priority to specific services within the scheduling and coordination process but only as set out in Articles 22 and 24.

3. The infrastructure manager shall consult interested parties about the draft working timetable and allow them at least one month to present their views. Interested parties shall include all those who have requested infrastructure capacity as well as other parties who wish to have the opportunity to comment on how the working timetable may affect their ability to procure rail services during the working timetable period.

4. The infrastructure manager shall take appropriate measures to deal with any concerns that are expressed.

Article 21

Coordination process

1. During the scheduling process referred to in Article 20, when the infrastructure manager encounters conflicts between different requests he shall attempt, through coordination of the requests, to ensure the best possible matching of all requirements.

2. When a situation requiring coordination arises, the infrastructure manager shall have the right, within reasonable limits, to propose infrastructure capacity that differs from that which was requested.

3. The infrastructure manager shall attempt, through consultation with the appropriate applicants, to achieve a resolution of any conflicts.

4. The principles governing the coordination process shall be defined in the network statement. These shall in particular reflect the difficulty of arranging international train paths and the effect that modification may have on other infrastructure managers.

5. When requests for infrastructure capacity cannot the satisfied without coordination, the infrastructure manager shall attempt to accommodate all requests through coordination.

6. Without prejudice to the existing appeal procedures and to the provisions of Article 30, in case of disputes relating to the allocation of infrastructure capacity, a dispute resolution system shall be made available in order to resolve such disputes promptly. If this system is applied, a decision shall be reached within a time limit of 10 working days.

Article 22

Congested infrastructure

1. Where after coordination of the requested paths and consultation with applicants it is not possible to satisfy requests for infrastructure capacity adequately then the infrastructure manager must immediately declare that element of infrastructure on which this has occurred to be congested. This shall also be done for infrastructure which it can be foreseen will suffer from insufficient capacity in the near future.

2. When infrastructure has been declared to be congested, the infrastructure manager shall carry out a capacity analysis as described in Article 25, unless a capacity-enhancement plan as described in Article 26 is already being implemented.

3. When charges in accordance with Article 7(4) have not been levied or have not achieved a satisfactory result and the infrastructure has been declared to be congested, the infrastructure manager may in addition employ priority criteria to allocate infrastructure capacity.

4. The priority criteria shall take account of the importance of a service to society, relative to any other service which will consequently be excluded. This shall include taking account of the effect in other Member States.

5. The importance of freight services and in particular international freight services shall be given adequate consideration in determining priority criteria.

6. The procedures which shall be followed and criteria used where infrastructure is congested shall be set out in the network statement.

Article 23

Ad hoc requests

1. The infrastructure manager shall respond to ad hoc requests for individual train paths as quickly as possible, and in any event, within five workings days. Information supplied on available spare capacity shall be made available to all applicants who may wish to use this capacity.

2. Infrastructure managers shall where necessary undertake an evaluation of the need for reserve capacity to be kept available within the final scheduled working timetable to enable them to respond rapidly to foreseeable ad hoc requests for capacity. This shall also apply in cases of congested infrastructure.

Article 24

Specialised infrastructure

1. Without prejudice to paragraph 2, infrastructure capacity shall be considered to be available for the use of all types of service which conform to the characteristics necessary for operation on the train path.

2. Where there are suitable alternative routes, the infrastructure manager may, after consultation with interested parties, designate particular infrastructure for use by specified types of traffic. Without prejudice to Articles 81, 82 and 86 of the Treaty, when such designation has occurred, the infrastructure manager may give priority to this type of traffic when allocating infrastructure capacity.

Such designation shall not prevent the use of such infrastructure by other types of traffic when capacity is available and when the rolling stock conforms to the technical characteristics necessary for operation on the line.

3. When infrastructure has been designated pursuant to paragraph 2, this shall be described in the network statement.

Article 25

Capacity analysis

1. The objective of capacity analysis is to determine the restrictions on infrastructure capacity which prevent requests for capacity from being adequately met, and to propose methods of enabling additional requests to be satisfied. This analysis shall identify the reasons for the congestion and what measures might be taken in the short and medium term to ease the congestion.

2. The analysis shall consider the infrastructure, the operating procedures, the nature of the different services operating and the effect of all these factors on infrastructure capacity. Measures to be considered shall include in particular rerouting of services, retiming services, speed alterations and infrastructure improvements.

3. A capacity analysis shall be completed within six months of the identification of infrastructure as congested.

Article 26

Capacity-enhancement plan

1. Within six months of the completion of a capacity analysis, the infrastructure manager shall produce a capacity-enhancement plan.

2. A capacity-enhancement plan shall be developed after consultation with users of the relevant congested infrastructure.

It shall identify:

(a) the reasons for the congestion;

(b) the likely future development of traffic;

(c) the constraints on infrastructure development;

(d) the options and costs for capacity enhancement, including likely changes to access charges.

It shall also, on the basis of a cost-benefit analysis of the possible measures identified, determine what action shall be taken to enhance infrastructure capacity, including a calendar for implementation of the measures.

The plan may be subject to prior approval by the Member State.

3. The infrastructure manager shall cease to levy and fees which are levied for the relevant infrastructure under Article 7(4) in cases where:

(a) it does not produce a capacity-enhancement plan; or

(b) it does not make progress with the action plan identified in the capacity-enhancement plan.

However, the infrastructure manager may, subject to the approval of the regulatory body referred to in Article 30 continue to levy those fees if:

(a) the capacity-enhancement plan cannot be realised for reasons beyond its control; or

(b) the options available are not economically or financially viable.

Article 27

Use of train paths

1. In particular for congested infrastructure the infrastructure manager shall require the surrender of a train path which, over a period of at least one month, has been used less than a threshold quota to be laid down in the network statement, unless this was due to non-economic reasons beyond the operator's control.

2. An infrastructure manager may specify in the network statement conditions whereby it will take account of previous levels of utilisation of train paths in determining priorities for the allocation process.

Article 28

Infrastructure capacity for scheduled maintenance

1. Requests for infrastructure capacity to enable maintenance to be performed shall be submitted during the scheduling process.

2. Adequate account shall be taken by the infrastructure manager of the effect of infrastructure capacity reserved for scheduled track maintenance on applicants.

Article 29

Special measures to be taken in the event of disturbance

1. In the event of disturbance to train movements caused by technical failure or accident the infrastructure manager must take all necessary steps to restore the normal situation. To that end it shall draw up a contingency plan listing the various public bodies to be informed in the event of serious incidents or serious disturbance to train movements.

2. In an emergency and where absolutely necessary on account of a breakdown making the infrastructure temporarily unusable, the paths allocated may be withdrawn without warning for as long as is necessary to repair the system.

The infrastructure manager may, if it deems it necessary, require railway undertakings to make available to it the resources which it feels are the most appropriate to restore the normal situation as soon as possible.

3. Member States may require railway undertakings to be involved in assuring the enforcement and monitoring of their own compliance of the safety standards and rules.

CHAPTER IV

GENERAL MEASURES

Article 30

Regulatory body

1. Without prejudice to Article 21(6), Member States shall establish a regulatory body. This body, which can be the Ministry responsible for transport matters or any other body, shall be independent in its organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant. The body shall function according to the principles outlined in this Article whereby appeal and regulatory functions may be attributed to separate bodies.

2. An applicant shall have a right to appeal to the regulatory body if it believes that it has been unfairly treated, discriminated against or is in any other way aggrieved, and in particular against decisions adopted by the infrastructure manager or where appropriate the railway undertaking concerning:

(a) the network statement;

(b) criteria contained within it;

(c) the allocation process and its result;

(d) the charging scheme;

(e) level or structure of infrastructure fees which it is, or may be, required to pay;

(f) safety certificate, enforcement and monitoring of the safety standards and rules.

3. The regulatory body shall ensure that charges set by the infrastructure manager comply with Chapter II and are non-discriminatory. Negotiation between applicants and an infrastructure manager concerning the level of infrastructure charges as provided for in Article 8(1) shall only be permitted if these are carried out under the supervision of the regulatory body. The regulatory body shall intervene if negotiations are likely to contravene the requirements of this Directive.

4. The regulatory body shall have the power to request relevant information from the infrastructure manager, applicants and any third party involved within the Member State concerned, which must be supplied without undue delay.

5. The regulatory body shall be required to decide on any complaints and take action to remedy the situation within a maximum period of two months from receipt of all information.

Notwithstanding paragraph 6, a decision of the regulatory body shall be binding on all parties covered by that decision.

In the event of an appeal against a refusal to grant infrastructure capacity, or against the terms of an offer of capacity, the regulatory body shall either confirm that no modification of the infrastructure manager's decision is required, or it shall require modification of that decision in accordance with directions specified by the regulatory body.

6. Member States shall take the measures necessary to ensure that decisions taken by the regulatory body are subject to judicial review.

Article 31

Cooperation of regulatory bodies

The national regulatory bodies shall conduct an active exchange of views and experience for the purposes of coordinating their decision-making principles across the Community. The Commission shall support them in this task.

Article 32

Safety certification

1. The arrangements for safety certification for railway undertakings which are or will be established in the Community and the international groupings which they form shall be in accordance with this Article.

2. The Member States shall provide for their respective territories that a safety certificate in which the railway undertaking's safety requirements are set out be submitted in order to ensure safe service on the routes concerned.

3. In order to obtain the safety certificate, the railway undertaking shall comply with the regulations under national law, compatible with Community law and applied in a non-discriminatory manner, laying down the technical and operational requirements specific to rail services and the safety requirements applying to staff, rolling stock and the undertaking's internal organisation.

In particular, it shall provide proof that the staff whom it employs to operate and accompany the trains have the necessary training to comply with the traffic rules applied by the infrastructure manager and to meet the safety requirements imposed on it in the interests of train movement.

The railway undertaking shall also prove that the rolling stock making up the trains has been approved by the public authority or by the infrastructure manager and checked in accordance with the operating rules applicable to the infrastructure used. The safety certificate shall be issued by whichever body is designated for the purpose by the Member State in which the infrastructure used is situated.

Article 33

Derogations

1. For a period of five years from ...(13), 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 requirements set out in:

(a) Articles 3, 4(2), 13, 14, 17, 21(4), 21(6), 22, 24(3), 25 to 28 and 30 on the condition that decisions on the allocation of infrastructure capacity or the charging of fees are open to appeal, when so requested in writing by a railway undertaking, before an independent body which shall take its decision within two months of the submission of all relevant information and whose decision shall be subject to judicial review, and

(b) Article 32 in so far as rail transport services falling outside the scope of Article 10 of Directive 91/440/EEC are concerned.

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 Northern Ireland, a railway company so licensed elsewhere submits an official application to operate competing railway services in, to or from Ireland, Northern Ireland or Greece, the continued applicability of this derogation will be decided upon in accordance with the advisory procedure referred to in Article 35(2), or

(b) a railway undertaking operating railway services in Ireland, Northern Ireland or Greece submits an official application to operate railway services on, to or from the territory of another Member State (in the case of Ireland, or the United Kingdom, in respect of Northern Ireland, or both, another Member State outside their territories), the derogations 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 35(2), or notification of the official application referred to in point (b), the Member State or States concerned (Ireland, the United Kingdom in respect of Northern Ireland, or Greece) shall put in place legislation to implement the Articles referred to in paragraph 1.

3. A derogation referred to in paragraph 1 may be renewed for periods of not longer than five years. Not later than 12 months before the expiry 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 Commission shall examine such a request and adopt a decision in accordance with the advisory procedure referred to in Article 35(2). The said advisory procedure 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 rail market 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 and non-discriminatory access to infrastructure, as provided for in Articles 4 and 14 in so far as they oblige Member States to establish independent bodies performing the tasks referred to in those Articles.

CHAPTER V

FINAL PROVISIONS

Article 34

Implementing measures

1. Member States may bring any question concerning the implementation of this Directive to the attention of the Commission. Appropriate decisions shall be adopted in accordance with the advisory procedure referred to in Article 35(2).

2. 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 provisions concerning charging, capacity allocation and safety certification, and within two months of receipt of such a request decide in accordance with the advisory procedure referred to in Article 35(2) whether the related measure may continue to be applied. The Commission 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 one month. The Council, acting by a qualified majority, may in exceptional circumstances take a different decision within a period of one month.

3. The amendments necessary to adapt the Annexes shall be adopted in accordance with the regulatory procedure referred to in Article 35(3).

Article 35

Committee procedures

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 36

Report

The Commission shall by ...(14) submit to the European Parliament and to the Council a report on the implementation of this Directive, accompanied if necessary by proposals for further Community action.

Article 37

Repeals

Regulation (EEC) No 2830/77, Regulation (EEC) No 2183/78, Decision 82/529/EEC, Decision 83/418/EEC and Directive 95/19/EC are hereby repealed.

Article 38

Implementation

The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ...(15). They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

Article 39

Entry into force

This Directive shall enter into force on the date of its publication in the Official Journal of the European Communities.

Article 40

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 321, 20.10.1998, p. 10.

(2) OJ C 209, 22.7.1999, p. 22.

(3) OJ C 57, 29.2.2000, p. 40.

(4) Opinion of the European Parliament of 10 March 1999 (OJ C 175, 21.6.1999, p. 120), Council Common Position of 28 March 2000 and Decision of the European Parliament of ... (not yet published in the Official Journal).

(5) OJ L 237, 24.8.1991, p. 25. Directive as amended by Directive 2000/.../EC of the European Parliament and of the Council.

(6) OJ L 143, 27.6.1995, p. 75.

(7) OJ L 184, 17.7.1999, p. 23.

(8) OJ L 334, 24.12.1977, p. 13. Regulation as last amended by the 1994 Act of Accession.

(9) OJ L 258, 21.9.1978, p. 1. Regulation as last amended by the 1994 Act of Accession.

(10) OJ L 234, 9.8.1982, p. 5. Decision as last amended by the 1994 Act of Accession.

(11) OJ L 237, 26.8.1983, p. 32. Decision as last amended by the 1994 Act of Accession.

(12) 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). Regulation as last amended by Regulation (EC) No 1893/91 (OJ L 169, 29.6.1991, p. 1).

(13) Two years after the entry into force of this Directive.

(14) Four years after the entry into force of this Directive.

(15) Two years after the entry into force of this Directive.

ANNEX I

CONTENTS OF THE NETWORK STATEMENT

The network statement referred to in Article 3 shall contain the following information.

1. A section setting out the nature of the infrastructure which is available to railway undertakings and the conditions of access to it.

2. A section on charging principles and tariffs. This shall contain appropriate details of the charging scheme as well as sufficient information on charges that apply to the services listed in Annex II which are provided by only one supplier. It shall detail the methodology, rules and, where applicable, scales used for the application of Article 7(4) and (5) and Articles 8 and 9. It shall contain information on changes in charge already decided upon or foreseen.

3. A section on the principles and criteria for capacity allocation. This shall set out the general capacity characteristics of the infrastructure which is available to railway undertakings and any restrictions relating to its use, including likely capacity requirements for maintenance. It shall also specify the procedures and deadlines which relate to the capacity allocation process. It shall contain specific criteria which are employed during that process, in particular:

(a) the procedures according to which applicants may request capacity from the infrastructure manager;

(b) the requirements governing applicants;

(c) the schedule for the application and allocation processes;

(d) the principles governing the coordination process;

(e) the procedures which shall be followed and criteria used where infrastructure is congested;

(f) details of restrictions on the use of infrastructure;

(g) any conditions by which account is taken of previous levels of utilisation of capacity in determining priorities for the allocation process.

It shall detail the measures taken to ensure the adequate treatment of freight services, international services and requests subject to the ad hoc procedure.

ANNEX II

SERVICES TO BE SUPPLIED TO THE RAILWAY UNDERTAKINGS

1. The minimum access package shall comprise:

(a) handling of requests for infrastructure capacity;

(b) the right to utilise capacity which is granted;

(c) use of running-track points and junctions;

(d) train control including signalling, regulation, dispatching and the communication and provision of information on train movement;

(e) all other information required to implement or operate the service for which capacity has been granted.

2. Track access to services facilities and supply of services shall comprise:

(a) use of electrical-supply equipment for traction current, where available;

(b) refuelling facilities;

(c) passenger stations, their buildings and other facilities;

(d) freight terminals;

(e) marshalling yards;

(f) train-formation facilities;

(g) storage sidings;

(h) maintenance and other technical facilities.

3. Additional services may comprise:

(a) traction current;

(b) pre-heating of passenger trains;

(c) supply of fuel, shunting, and all other services provided at the access service facilities mentioned above;

(d) tailor-made contracts for:

- control of transport of dangerous goods;

- assistance in running abnormal trains.

4. Ancillary services may comprise:

(a) access to telecommunication network;

(b) provision of supplementary information;

(c) technical inspection of rolling stock.

ANNEX III

SCHEDULE FOR THE ALLOCATION PROCESS

1. The working timetable shall be established once per calendar year.

2. The change of working timetable shall take place at midnight on the last Saturday in May. Where a change or adjustment is carried out after the summer it shall take place at midnight on the last Saturday in September each year and at such other intervals between these dates as are required. Infrastructure managers may agree on different dates and in this case they shall inform the Commission thereof.

3. The final date for receipt of requests for capacity to be incorporated into the working timetable shall be no more than 12 months in advance of the entry into force of the working timetable.

4. No later than 11 months before the working timetable comes into force, the infrastructure managers shall ensure that provisional international train paths have been established in cooperation with other relevant allocation bodies as set out in Article 15. Infrastructure managers shall ensure that as far as possible these are adhered to during the subsequent processes.

5. No later than four months after the deadline for submission of bids by applicants, the infrastructure manager shall prepare a draft timetable.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 30 September 1998 the Commission sent the Council a proposal for a Directive of the European Parliament and of the Council relating to the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification(1). The proposal, which is intended to replace Directive 95/19/EC, was based on Article 75 of the EC Treaty (Article 71 EC since the amendment of the Treaty).

2. The European Parliament, the Economic and Social Committee and the Committee of the Regions delivered their opinions on 10 March(2), 26 May(3) and 18 November 1999(4) respectively.

Following the entry into force of the Amsterdam Treaty on 1 May 1999, the European Parliament confirmed its opinion on 27 October 1999.

3. The Commission sent its amended proposal(5) to the European Parliament and the Council on 29 November 1999. The proposal is based on Article 71 EC.

4. The Council adopted its Common Position in accordance with Article 251 EC on 28 March 2000.

II. AIMS

This Directive is part of a legislative package for revitalising Europe's railways. The aim is to reverse the decline in railway transport, particularly freight transport, by creating the conditions for the development of an expending, competitive, customer-oriented rail system.

A revitalised rail system is essential given current levels of road congestion and the associated safety and environmental problems. If road traffic is not to come to a complete standstill in the next few years, there has to be more rational use of the railways. The terms on which they compete with other means of transport have therefore to be improved.

The proposed legislative package comprises three proposals for Directives. In addition to the common position to which this statement of reasons attaches, the Council has adopted common positions on:

- a proposal amending the provisions of Directive 91/440/EEC in order (a) to establish the right of access to railway infrastructure for railway undertakings in the Community, (b) to achieve the separation of the accounts of railway infrastructure management and the provision of transport services and (c) to ensure that essential functions are managed in ways that guarantee undertakings fair, non-discriminatory access to the infrastructure, and

- a proposal to broaden the scope of Directive 95/18/EC on the licensing of railway undertakings.

This legislative package seeks, then, to provide a new framework for the conditions for use of the rail infrastructure by making access rights effective, the overarching goals being to guarantee that all railway undertakings are treated in a fair, non-discriminatory manner and to ensure the efficient and competitive use of rail infrastructure.

To achieve these aims, it is essential to establish effective charging systems, which requires concomitant transparency in the finances of infrastructure management.

At the same time the allocation of capacity has to take account of the needs of the users. Thus, in addition to these last two aims, this proposal for a Directive pursues a safety certification objective.

III. ANALYSIS OF THE COMMON POSITION

The Council endorses the proposal's main objectives of developing international rail transport and safeguarding the principles of transparency and non-discrimination. Nevertheless the text was extensively reworked in the course of the discussions.

Like the European Parliament, the Council considered that some flexibility is needed in infrastructure charging and the allocation of capacity given the characteristics of Member States' rail systems, which differ widely in technical, economics and institutional terms.

The following are the most important amendments made by the Council:

- calculation of charges: where the market can bear such increases and the Member State in question wishes for fuller recovery of the total costs of the infrastructure, Member States are allowed to levy mark-ups on the costs directly incurred by operating the train service,

- capacity allocation: only railway undertakings may apply for train paths, although Member States may allow other applicants to apply for capacity in their territories,

- the proposal's rules on charging and capacity allocation have been simplified,

- temporary derogations from applying some articles of the Directive have been introduced for the benefit of certain Member States on the basis of the particular circumstances of their railway systems.

1. Infrastructure charging

- The Council accepted the proposal's overall charging principle, i.e. the cost directly incurred as a result of operating the train service (Article 7(3) of the Common Position), but considerably amended the exceptions to that principle, mainly by simplifying them.

- The most important exception (Article 8(1) of the Common Position) allows Member States to recover infrastructure costs and whose market can bear such increases to levy mark-ups on the basis of efficient, transparent and non-discriminatory principles.

- The Common Position has introduced two amendments to the additional charges reflecting the scarcity of capacity and the environmental effects of operating train services (Article 7(4) and (5) of the Common Position). Firstly, the references to the transparency of the methods used to calculate these two charges have been moved to Annex I(2) of the Common Position. Secondly, "the costs of external effects", the wording of the proposal, has become in the Common Position "the costs of the environmental effects", which in the Council's judgment was less controversial methodologically than the broader concept of external costs.

- The Common Position (Article 8(2)) has amended the rules on the higher charges that may be levied on specific investment projects. The amendments include scrapping the exceptional nature of the charges, more detailed information on specific projects (completed projects may not be more than 15 years old) and on the implementation of the charges (before or after the Directive's entry into force), and a reference to the possibility of concluding arrangements in certain cases (e.g. where they are financed by a public-private partnership arrangement).

- The Common Position has modified other aspects of the exceptions allowed in the proposal to the charging principles, including: a description of the options that may be used to levy mark-ups and the definition of the right of access to infrastructure on the basis of the amount of authorised charges (second subparagraph of Article 8(1) of the Common Position); the introduction of a general clause on non-discrimination and transparency in charging (Article 8(3) of the Common Position); the elimination of the special rules for passenger transport in Article 9(2) second sentence, (3), (4) and (5) of the proposal.

- On the question of discounts, the Common Position (Article 9) has amended the proposal in two respects: firstly, in paragraph 2, in order to avoid discounts leading to indirect discrimination against railway undertakings other than the main operator, they have been limited to the actual saving of "the administrative cost" to the infrastructure manager; secondly, paragraph 3 allows specific discounts to encourage certain traffic flows or the use of underutilised lines.

- Regarding the modulation of charges on the basis of the non-internalised costs of other modes of transport, Article 10(1) narrows down the "marginal external costs" to "environmental, accident and infrastructure costs" in order to avoid methodological dispute about the other external costs; lastly Article 12, which covers reservation charges, has considerably streamlined the corresponding rules in the proposal.

- The Common Position (Article 5 and Annex II) has modified a number of aspects of the services provided to railway undertakings. There is a reference to track access to service facilities, so as to ensure the availability of such services; however, a clause has been inserted to cover the situation where there are no viable alternatives. In addition, in Annex II "use of electrical-supply equipment for traction current" (i.e. the possibility of linking the pantograph to the catenary) has been moved to point 2(a) (under "track access to service facilities"), whereas the supply of "traction current" continues to be classified under point 3 as an additional service. Moreover, Annex II to the Common Position omits the three "mandatory" services included in the proposal, on the grounds that Article 29 lays down the measures to be taken in the event of disturbance or accident, safety standards are dealt with in Article 7 of the Common Position amending Directive 91/440/EEC, and police intervention is the responsibility of the Member States.

- The substance of Article 7 of the proposal, designed to render charging systems transparent, has been simplified and incorporated into Article 3 and Annex I(2) of the Common Position.

- Article 4(2) of the Common Position incorporates the changes already made to the Common Position on the amendment of Directive 91/440/EEC (Article 6(3) second subparagraph, (4) and (5)) relating to the collection of charges and the rail regulator.

- A second subparagraph has been added to Article 6(1) to reflect the new wording of Article 8(1).

2. Capacity allocation

- The rules on allocating capacity have been pared down as far as possible, as the Council considered the approach of the Commission proposal to be too detailed and more suited to a regulation than a directive. The proposal's basic principles have nevertheless been respected (i.e. taking freight services, in particular international freight, into account when allocating train paths; non-discrimination between undertakings; reliability of service; performance incentives, etc.). In doing so, the Council took into consideration the experience of those Member States where schemes for allocating capacity among several rail companies are already in operation.

- The Common Position allows only railway undertakings and their international groupings to apply for train paths; Member States may, however, also consider other interested natural or legal persons as applicants for capacity in their territories (Article 2(b) and 16(1)).

- Provision has been made for a dispute-resolution system for the coordination process for capacity applications, without prejudice to existing appeal procedures; accordingly it is specified that decisions have to be taken within ten days (Article 21(6)). This procedure, the detail of which is to be decided by the Member States under the principle of subsidiarity, is intended to replace the arbitration procedure proposed by the Commission.

- The concept of "congested infrastructure" has been used instead of the proposed "scarcity of capacity"; the Council considered that the former was a more accurate description of the situation in this Article and of the phenomenon that infrastructure managers and railway undertakings would have to confront; a clause has been added to the effect that the importance of freight services and in particular international freight services is to be given consideration when determining priority criteria (Article 22(5)).

- The Common Position has used the term "ad hoc requests" rather than "short-notice requests", although the five-day deadline for replying to requests for individual train paths has been kept; the procedure also applies in cases of congested infrastructure and replies must be duly substantiated (Article 23).

- The structure of the capacity-enhancement plan has been improved and the plan itself fleshed out, drawing on the experience of a number of Member States (Article 26).

- The provision whereby the infrastructure manager may withdraw an underused train path from a railway undertaking has been worded so as to make it easier to apply. The Council took various Member States' experience of railway management into consideration. The threshold of non-utilisation which would lead to the operator's surrendering a train path will be laid down in the network statement. It was not felt that a uniform threshold could be readily imposed for the various networks with their widely differing levels of use (Article 27).

- A provision had been added on measures to be taken in the event of disturbance (Article 29). The infrastructure manager is required to make provision for technical failure and accidents and to draw up a relevant contingency plan. Rules have also been laid down regarding the withdrawal, where necessary, of allocated train paths, and railway companies are also required to do their utmost to restore normal traffic. Lastly, Member States may require railway undertakings to play a role in enforcing and monitoring their own compliance with safety standards. This last requirement was included by way of alignment on the safety standard laid down in the second subparagraph of Article 7(2) of the Common Position on the proposal for a Directive amending Directive 91/440/EEC.

3. Other questions

- The Common Position (Article 1(4)) excludes shuttle services for road vehicles through the Channel Tunnel from the scope of the Directive on the same grounds as explained in the statement of reasons for the Common Position on the amendment of Directive 91/440/EEC.

- The content of the network statement have been made more specific (Article 3 and Annex I).

- The Council has broadened the scope of safety certification (Article 32(1) and (3) second subparagraph) to cover all railway undertakings (not merely those providing the services referred to in Article 10 of Directive 91/440/EEC).

- The Council considered that the report on the implementation of the Directive (Article 36) should also be sent to the European Parliament.

- The Council took the view that provision should be made for regulatory bodies to cooperate (Article 31).

- Temporary derogations have been laid down in order to accommodate the specific characteristics of certain Member States' networks (Article 33).

- The deadline for transposing the Directive has been updated (Article 38).

- Articles 34 and 35 of the Common Position establish a committee procedure (advisory committee or regulatory committee, depending on the case).

IV. EUROPEAN PARLIAMENT AMENDMENTS

1. European Parliament amendments accepted by the Commission and adopted by the Council

The Council followed the amended proposal and adopted the following European Parliament Amendments either in whole or in part:

- Amendment 3 on the gradual opening up of the market has been incorporated as recital 8,

- Amendment 6, which refers to fair competitive conditions between rail and road and to taking account of their external effects, has been incorporated in recital 10,

- Amendment 7, which relates to the definition of the infrastructure manager, has been inserted in Article 2(h),

- Amendment 8, on the definition of network has been incorporated in Article 2(i),

- Amendment 9, which makes the establishment of a charging framework mandatory, has been incorporated in Article 4(1),

- Amendment 11, which covers situations where the services to railway undertakings are provided by suppliers other than the infrastructure managers, has been incorporated in Article 5(1),

- Amendment 12, which allows the amount of the charge to exceed the cost directly incurred by operating the train service, has not been taken over in Article 7(3) of the Common Position, since Article 7 deals with the general principles of charging. However, the spirit of the Amendment, which is in line with Amendment 14, is reflected in Article 8(1) on exceptions to charging principles,

- the substance of Amendment 14 (on exceptions to charging principles) has been accepted. In particular, Article 8 of the Common Position simplifies the charging rules, in some circumstances allows higher charges than the cost of operating the train service, and takes the specific investment factor into account, albeit in a more qualified form,

- Amendment 16 has been incorporated in Article 12 of the Common Position,

- the substance of Amendment 19 has been taken over in the adjustments made to Articles 2(b) and 16(1) of the Common Position,

- Amendment 28 has been incorporated as Article 31 of the Common Position.

2. European Parliament amendment accepted by the Commission but rejected by the Council

Amendment 4 on the need for gradual harmonisation measures has not been included in the Common Position, because there are no corresponding provisions in the enacting terms. However, the European Parliament's view is shared by the Council and was incorporated into the conclusions adopted at the Council meeting on 6 October 1999: ("(d) In parallel, the Commission shall present in the coming months a strategy on the improvement of railway interoperability ...") and confirmed at its meeting on 9 and 10 December 1999 (see proposal for a Directive of the European Parliament and of the Council on the interoperability of the trans-European conventional rail system, 1999/0252 (COD)).

3. European Parliament amendments accepted neither by the Commission nor by the Council

In general the Council, like the European Parliament, thought that the Commission proposal contained rules that were sometimes too detailed. These have therefore been simplified in the Common Position, although not all the deletions sought by the European Parliament were accepted, since harmonisation of certain rules was considered necessary in order to make the system more transparent and more efficient, and to avoid discrimination.

- Amendment 5 has not been incorporated, because it was not directly related to the substance of the enacting terms. The Council did, however, partially take over the substance of the amendment. The idea that the Community-law-based mode of operation does not rule out the mode of operation based on railway cooperation is reflected in Article 10(3) of the Common Position on the amendment of Directive 91/440/EEC ("Whatever the mode of operation ..."). Similarly, there are references to maintaining high standards of safety in the Common Positions on that Directive (Article 7(2)) and this Directive (Article 32).

- Amendment 10 was not accepted: the Council, endorsing the opinion expressed in the amended Commission proposal, considered that the Parliament's proposed model would lead to a system that was potentially confusing and heavily bureaucratic.

- In amendment 13 Parliament seeks to restrict charging for external costs in the rail sector to cases where other modes of transport are also required to pay a similar amount in charges for such costs. The Council followed the Commission's opinion and rejected this condition, which it found too rigid, preferring instead to provide for an indirect safeguard measure linked to the overall revenue of the infrastructure manager (Article 7(5)) and for the option of introducing time-limited schemes to compensate railway-infrastructure users for certain unpaid external costs of competing modes of transport (Article 10(1)).

- The Council decided against incorporating Amendment 15, whereby the only conditions applying to discounts accorded railway undertakings would be the general conditions laid down in Article 4(5) of the proposal. The Council took the opposite view that discounts should be subject to more detailed conditions (set out in Article 9), in particular so that they did not become indirect means of discrimination.

- In Amendments 17 and 18 the European Parliament seeks the addition of two new Articles setting Community-level priorities for the allocation of infrastructure capacity; the Council did not incorporate these amendments in the Common Position on the grounds that, in accordance with the principle of subsidiarity, such criteria must be laid down by the Member States or by infrastructure managers.

- Amendment 20, which aims to raise the normal maximum length of framework agreements to seven years, has not been incorporated into Article 17(5) of the Common Position; the Council considered it more appropriate to abide by the five years proposed by the Commission, while allowing longer periods in specific cases.

- Amendment 21, deleting several paragraphs on the scheduling process, has not been incorporated into Article 20 of the Common Position. The Council saw fit to state in the Directive's enacting terms that it was unjustified to give priority to certain services unless the specialised infrastructure was congested; the Council also considered it worthwhile to state that, before scheduling train paths, infrastructure managers should consult interested parties on the matter and take account of their views.

- Amendment 22, aimed at paring down some of the rules applying to the coordination process, has not been incorporated into Article 21 of the Common Position. The Council agreed with the Commission that paragraphs 3, 4 and 5 should be kept in the interests of transparency.

- Amendment 23 aims to have the capacity analysis that is undertaken when capacity is scarce completed within three months. It will be remembered that the proposal (Article 25(2) in conjunction with Article 28(4)) set a period of two months. The Council preferred to extend the period to six months (Article 22(2) in conjunction with Article 25(3) of the Common Position).

- Amendment 24, designed to simplify the rules applying to short-notice requests for train paths, was not followed in its entirety by the Council. However, the text has been simplified along the lines proposed by Parliament (Article 23).

- The Council did not incorporate Amendment 25 on specialised infrastructure into the Common Position, on the grounds that the enacting terms should spell out the implications of the inherent features of this type of line for the allocation of train paths (Article 24).

- Amendment 26, which seeks to delete the Article on infrastructure-capacity analysis, was rejected by the Council on the grounds that rules on this aspect had to be maintained in the Common Position (Article 25) in the interests of transparency and efficiency, and in view of the fact that infrastructure managers had a monopoly on infrastructure; however, the rules have been simplified and, in addition, the period for completing the capacity analysis has been increased from two to six months.

- Amendment 27, simplifying the rules applying to the capacity-enhancement plan, was not accepted; the Council felt that further details should be added in the interests of transparency and efficiency, and that the provision for users to be consulted before the infrastructure manager proposed a capacity-enhancement plan ought to be kept (Article 26).

(1) OJ C 321, 20.10.1998, p. 10.

(2) OJ C 175, 21.6.1999, p. 115.

(3) OJ C 209, 22.7.1999, p. 22.

(4) OJ C 57, 29.2.2000, p. 40.

(5) Not yet published in the Official Journal.