EN    EN EN 
 
EN    EN  EUROPEAN COMMISSION 
Brussels, 17.9.2010 
SEC(2010) 1043 final 
  
COMMISSION STAFF WORKING DOCUMENT 
SUMMARY OF THE IMPACT ASSESSMENT 
  
Accompanying document to the 
  
Proposal for a 
 
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
 
establishing a single European railway area 
 
(Recast) 
 
 
{COM(2010) 475} 
{SEC(2010) 1042}  
 
 
 
EN 2   EN COMMISSION STAFF WORKING DOCUMENT 
SUMMARY OF THE IMPACT ASSESSMENT  
 
 
Accompanying document to the 
  
Proposal for a 
 
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
 
establishing a single European railway area 
 
(Recast) 
  
 
EN 3   EN INTRODUCTION  
The first railway package1 is comprised of three Directives that include provi sions that date 
back as far as 1991. Within the context of  the Commission's programme for simplifying 
legislation2, the proposed initiative to recast the first package will involve a process of 
codification of these Directives and their mergi ng into one legislative instrument with a view 
to simplifying and consolidating.  
From a substantial point of view, the objective is  to insert into this single act new provisions 
to simplify, clarify and modernise the existing regulatory framework to address weaknesses, 
ambiguities and gaps identified and thereby to m eet the initial objectives of the legislation. 
1. P ROBLEM DEFINITION  
This report sets out the impacts of measures to be included in the recast of the first railway 
package, which have been formulated to addr ess three key problems in the railway market: 
• Market access  remains difficult for new entrants. The number of new entrants in 
the rail freight market is still very limited and average operating costs for rail 
undertakings are high and increasing.  
• The European rail market is still characterised by a high degree of fragmentation 
which compromises the functioning of the ma rket and in particular affects railway 
undertakings.  
• The quality of infrastructure  continues to decline. This affects the performance 
of rail transport, due to reduced capacity  and delays, discourages investment in 
ancillary services and new technologies and compromises rail's ability to compete 
credibly with other transport modes.  
As a result, rail transport is still an unattr active option and competitiveness of the sector in 
relation to other modes, notably ro ad transport, is diminished.  
The Commission considers there are three dimensions to tackling these problems: existing 
legislation must be correctly implemented a nd enforced; existing legislative provisions may 
need to be clarified to ensure harmonised appl ication across all Member States; and finally, 
new measures may be necessary to address specific issues. 
                                                 
1 Directive 2001/12/EC  of the European Parliament and of the Council of 26 February 2001 (OJ L 75, 
15.3.2001, p. 1, as amended); Directive 2001/13/EC  of the European Parliament and of the Council of 
26 February 2001 (OJ L 75, 15.3.2001, p. 26, as amended); and Directive 2001/14/EC  of the European 
Parliament and of the Council of 26 February 2001  on the allocation of railway infrastructure capacity 
and the levying of charges for the use of railway infrastructure (OJ L 75, 15.3.2001, p. 29, as amended).  
2 See COM(2005) 535 and COM(2006) 690: Implementing the Community Lisbon programme: A 
strategy for the simplification of the regulatory environment. 
 
EN 4   EN 2. D OES THE EU HAVE A RIGHT TO ACT ? 
Treaty base 
In accordance with Title VI of the Treaty on th e Functioning of the European Union (TFEU), 
the EU may take action in the area of transpor t. Article 90 of the TFEU establishes that 
objectives of the Treaties, which include establishing a common ma rket and developing 
common policies to promote a high degree of competitiveness and the harmonious, balanced 
and sustainable development of economic activitie s, shall be pursued within the framework of 
a common transport policy. 
Subsidiarity 
Problems affecting the railway sector involve trans-national aspects requiring action at EU 
level. A lack of coordination between Member States and othe r actors reduces the efficiency 
of international rail transport, risking a shift from rail to road transport which would result in 
increased congestion and pollution. Clarification of the regulatory framework for rail market 
access in order to facilitate market entry and competition as well as to develop rail service 
markets can be better achieved by the Un ion than by Member States individually. 
In accordance with the principle of  subsidiarity, as set out in Article 5 of the Treaty on the 
European Union, the objective of revitalising Eu rope’s railway sector will be better reached 
by complementing action already taken at EU level and by Me mber States by EU action to 
recast the first railway package. 
3. O BJECTIVES  
The general objectives  of this initiative are to  facilitate rail market entry and competition as 
well as to integrate the market, in order to develop efficient and high-performing rail freight 
and passenger transport servic es. The initiative should build  on, complement and strengthen 
existing measures adopted at EU level. 
Legal simplification  through consolidation a nd merger is the first horizontal objective  which 
underpins this recast initiative. Secondly, clarification of some provisions of rail access 
legislation would facilitate a pr oper transposition and efficien t implementation of EU law in 
all Member States. Finally, there is a need to modernise  the legislation by eliminating out-
dated provisions (historically relevant prior to full market-opening) and by introducing new 
provisions which respond more appropriately to the functio ning of the market today. 
The specific objectives  of the initiative are to: 
• Improve non-discriminatory access to service facilities 
• Enhance transparency of the railway market's institutional framework 
• Enhance co-operation and co-ordination to facilitate international rail transport  
• Provide effective incentives for sound and sustainable financing 
• Enhance regulatory body independence and competencies 
 
EN 5   EN 4. P OLICY OPTIONS  
The package considered for the re cast includes 26 modifications.  
An impact assessment was deemed necessary for modifications which introduce 9 new 
measures. For 4 measures, a prior impact assessment had been conducted by the Commission thus only 5 measures were analysed. Consid ering the limited scope of the measures, the 
analysis has been conducted in qualitative
 terms in such a way as to  allow a comparison of the 
effect of alternative policy options. Policy optio ns for the 5 new measures and their impact are 
summarised below. Based on this analysis, one option was retained per measure.  
The report also contains a quantitative  assessment of economic, social and environmental 
impacts and administrative costs carried out on the whole package of modifications retained. 
These quantitative impacts are presented in Section 5. 
4.1. Supply of rail-related services 
The requirement that service facility manageme nt should be independent from rail transport 
provision will reduce conflicts of interest and discrimination in access to services, thus 
contributing to the business development of new entrants.  
 Option 1 Option 2 Option 3 
Supply of rail-related services Service facility 
operators independent in legal terms from firms or entities which hold significant market power in railway transport market Service facility 
operators independent in legal, organisational and decision-making terms from firms or entities which hold significant market power in railway transport market Service facility 
operators independent in legal, organisational and decision-making terms from all firms or entities active in railway transport market  
Under Option 1, conflicts of inte rest will still persist since independence is only legal and a 
service facility operator could be part of a holding company that also controls an incumbent 
railway undertaking. 
Option 2 will ensure adequate independence and will have an impact on the development of 
rail-related services because acce ss to rail-related services for ne w entrants will be easier and 
cheaper. Administrative costs are lower than under option 1.  
Option 3 applies to all operators and is stricter and less effective than option 2. Investment in 
new service facilities would be less attracti ve since new entrant railway undertakings who 
have recently invested in and developed a service facility would be asked to sell the asset or to 
grant its management to a third party.  
Option 2 is the most promising option since it excludes possible conflicts  of interest but does 
not discourage future investments in rail-rela ted services by new entr ant railway undertakings. 
 
EN 6   EN 4.2. Availability of service facilities 
Specific provisions that create incentives for more effective use of ex isting assets will create 
additional infrastructure capacity with minimum investment. Increased av ailability of service 
facilities will contribute to removal of specific bottlenecks in the rail market. 
 Option 1 Option 2 Option 3 
Availability of 
service facilities Financial penalty 
in the case of non-use  Where service facility is 
not in use its owner shall publish operation of the facility for lease or rent. Where service facility is 
not in use its owner shall publish operation of the facility for sale. 
Option 1 will not always be effective since in order to prevent entry of new competitors, 
operators may prefer to pay financial pe nalties rather than re-open a facility.  
The impact of option 2 will be moderate. New se rvice providers will be able to take over 
previously unused service facilities and a growth in availabl e services will result in lower 
tariffs for new entrant railway undertakings. Option 2 will require  higher administrative costs 
than option 1 due to new administrative pro cesses for leasing or renting the assets.  
Option 3 imposes an obligation to  sell the facility in the case of non-use. However, a facility 
owner interested in pr eventing entrance into th e market of new railway undertakings may opt 
to sell to a real estate developer rather th an another manager willing to run the facility. 
Option 2 is the most promising. While administra tive costs are expected to be higher than 
under option 1, they are largely paid back by the benefits.  
4.3. Accounting separation 
Empowering Regulatory Bodies to audit infras tructure managers' and railway undertakings' 
accounts will enable them to supervise account separation compliance and identify “unfair” 
behaviour or situations that need monitoring. A standard format and content for information 
would enable verification of comp liance with charging principles. 
 Option 1 Option 2 Option 3 
Accounting 
separation  
 Oblige regular 
independent external audits and to deliver results to regulatory bodies 
  
 Empower rail regulatory 
body to 
carry out audits or 
initiate external audits to verify account separation 
and require cost accounting 
data in aggregated and standardised format with recommended minimum data Empower rail regulatory 
body to  
carry out audits or 
initiate external audits to verify account separation 
and require cost accounting 
data in aggregated and standardised format with comprehensive unified set of data and template  
 
 
EN 7   EN Option 1 will reduce market distortions and impr oper use of state funds and increase internal 
competition. However, the economic impact under option 2 will be higher as better 
information will enable Regulatory Bodies to ef fectively monitor compliance of infrastructure 
managers with charging principles , leading to lower, more transparent infrastructure charges. 
While ensuring the completeness of cost acco unting data, introducing a common detailed 
template in Option 3 will result in additional administrative costs for the public sector and 
business, but will not substantially increase the option's effectiveness. 
Option 2 is preferred as it enable s effective supervision by regulat ory bodies of infrastructure 
managers and incumbent railway undertakings wi thout high administrativ e costs of option 3.  
4.4. Support to operators in case of discriminatory treatment 
Extending the competencies of competition authori ties or regulatory bodies to enable them to 
provide adequate support to operators in case of  discriminatory treatme nt in access to service 
facilities will reduce market entr ance barriers for new entrants , trigger the development of 
business activities and in some cases result in lower service prices. 
 Option 1 Option 2 Option 3 
Support to operators in case of discriminatory treatment  Recommend that 
Member States empower competition authority to carry out emergency procedures in the context of dominant-position cases  Extend scope of 
regulatory bodies competences tocover Decisions related to Annex II of Directive 2001/14 (rail-related services) 
 Extend scope of 
regulatory bodies competences tocover Decisions related to Annex II of Directive 2001/14 (rail-related services) 
Include fast track 
emergency procedures which allow ex ante intervention. 
 
The introduction of emergency procedures in option 1 for dominant-position cases that fall 
under the statutory scope of competition authori ties will speed up access to service facilities 
for new entrants. However, a number of dominant position cases would remain and additional administrative costs are foreseen. 
Under option 2 competition authorities retain the power to intervene, but rail market players 
may also appeal to Regulatory Bodies on matt ers of discriminatory treatment. This will 
contribute more effectively than option 1 to re ducing discrimination in access to rail-related 
services and in reducing market entrance barriers. 
Option 3 also empowers regulator y bodies to act ex-ante in the context of dominant-position 
cases, but risks over-regulati ng the market by imposing deci sions where no particular 
difficulties have been reported. 
 
EN 8   EN Option 2 is preferred since it will enable Regulatory Bodies to intervene in all cases in which 
operators feel discriminated against and to supe rvise matters that concern rail related services 
without the excessive admini strative costs of option 3. 
4.5. Independence of Regulatory Bodies 
Additional independence require ments between Regulatory Bodies and incumbent railway 
undertakings will ensure full independence of their decision-making, thus creating grounds 
for fair competition in the rail market. 
 Option 1 Option 2 
Independence of Regulatory Bodies  Make regulatory bodies 
independent in organisation, funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant as well as the public authority that exercises ownership rights over the incumbent railway undertaking  
and functionally independent 
from any competent authority involved in award of a public service contract. 
 Single national regulatory 
body to be established in each Member State as  
legally distinct and 
independent in organisational, functional, hierarchical and decision making terms from any other public authority,  
independent in organisation, 
funding decisions, legal structure and decision-making from any infrastructure manager, charging body, allocation body or applicant 
and functionally independent 
from any competent authority involved in award of a public service contract. 
 
Option 1 will eliminate conflicts of interests and create equal administrative capacity of 
Regulatory Bodies across the EU, thus removing market entrance barriers by ensuring equal 
opportunity for all railway undertakings. 
Under Option 2 Regulatory Bodies will also be legally distin ct and independent from any 
other public authority but would not acquire fu rther independence from the infrastructure 
managers and incumbent railway undertaking as in option 1.  
Option 1 is preferred as it will ensure adequate independence for all Regulatory Bodies in the 
EU, resulting in positiv e economic, social and environmenta l impacts. Administrative costs 
will be reasonable. 
 
EN 9   EN 5. Q UANTITATIVE ANALYSIS OF IMPACTS FOR THE WHOLE PROPOSAL  
5.1. Economic impacts 
In terms of competition , implementation of the package of modifications will have a slight 
impact on freight modal share, leading to a st abilisation or earlier inversion of the baseline 
negative trend. As regards new entrants, modifi cations proposed in the package should be 
capable of generating up to 3-4% more new railway undertakings and up to 2-3% more 
market share for non-incumbents. From a quality  point of view, fatali ties in road freight 
transport would be avoided but there would be a low or very low correlation between market 
opening and punctuality. Finally, operating costs could be reduced by about 6%.  
5.2. Administrative cost 
Two types of administrative cost  have been taken into account: one-off administrative costs , 
defined as start up-cost or costs incurred when  re-designing the way administrative obligation 
or specific action are met; and recurrent administrative costs , defined as annual costs. 
These costs primarily consist of new publicatio n requirements for Member States (charging 
rule framework and medium/long-term developmen t strategy), infrastructure managers (new 
info in network statement), managers of te rminals (access conditions) and licensing bodies 
(license conditions). 
5.3. Social impacts 
As regards employment , the package would have an impact, representing over 1.700.000 
working hours equal to more than 1.000 additional workers. The modal shift from road to rail 
results in a slight decrease of employment in road transport. There would be general demand 
for more skilled personnel and a higher demand for training centres. 
5.4. Environmental impacts 
It is expected that implementation of the modi fications will provide benefits in reduced CO2 
emissions and improved air quality. The package may be disadvantageous in terms of noise 
emissions due to increased traffic but this is  off-set by noise-abatement measures. Benefits 
due to a reduction of energy consumption are exp ected to have maximum effect in the year of 
full implementation and then decrease slightly  because of improved energy efficiency 
expected for heavy duty vehicles. 
6. M ONITORING AND EVALUATION  
Information in the existing monitoring systems should be used while additional indicators 
should be established. Implementation of the initiative depends  on the joint efforts of the 
Member States, thus it is crucial th at monitoring systems are harmonised.  
Since most relevant indicators are currently monitored through the Rail Market Monitoring 
Scheme (RMMS)3 the monitoring of this initiative could be carried out within RMMS.  
                                                 
3 See COM(2007) 609 and COM(2009) 676.