Common Position (ΕC) No 53/2003

adopted by the Council on 26 June 2003

with a view to the adoption of a Directive 2003/.../EC of the European Parliament and of the Council of ... amending Council Directive 91/440/EEC on the development of the Community's railways

(2003/C 270 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 71(1) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the Opinion of the European 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) Council Directive 91/440/EEC(5) of 29 July 1991 provides that licensed railway undertakings are granted rights of access to the trans-European Rail Freight Network and, at the latest from 2008, to the whole network for international rail freight services.

(2) The extension of those access rights to international rail freight services on the whole network as from 1 January 2006 should enhance the anticipated benefits in terms of modal shift and the development of international rail freight.

(3) The extension of those access rights to all kinds of rail freight services as from 1 January 2008, in accordance with the principle of freedom to provide services, would improve the efficiency of the rail mode relative to other modes of transport. It would also facilitate sustainable transport between and within Member States, by encouraging competition and allowing entry of new capital and enterprises.

(4) The Commission should study developments in traffic, safety, working conditions and the situation of operators following implementation of the first railway package and should produce, by 1 January 2007, a report on those developments accompanied, where appropriate, by fresh proposals providing a basis for the best possible conditions for the Member States' economies, for rail undertakings and their employees, and for rail users.

(5) Rail freight services offer considerable opportunities for the creation of new transport services and the improvement of existing ones at national and at European level.

(6) To be fully competitive, rail freight transport increasingly requires the provision of comprehensive services, including transport between and within Member States.

(7) Since railway safety is regulated by Directive 2003/.../EC of the European Parliament and of the Council of ... on safety on the Community's railways(6) as part of a new coherent Community regulatory framework for the railway sector, the provisions on safety contained in Directive 91/440/EEC should be repealed.

(8) Directive 91/440/EEC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 91/440/EEC is hereby amended as follows:

1. in Article 7, paragraph 2 shall be deleted at the date of entry into force of the Directive 2003/.../EC of the European Parliament and of the Council of ... on safety on the Community's railways;

2. Article 10 shall be amended as follows:

(a) paragraph 3 shall be replaced by the following:

"3. Railway undertakings within the scope of Article 2 shall be granted, on equitable conditions, access to the Trans-European Rail Freight Network defined in Article 10a and in Annex I and, at the latest by 1 January 2006, to the entire rail network, for the purpose of operating international freight services.

In addition, at the latest by 1 January 2008, railway undertakings within the scope of Article 2 shall be granted, on equitable conditions, access to the infrastructure in all Member States for the purpose of operating all types of rail freight services."

(b) paragraph 5 shall be replaced by the following:

"5. Any railway undertaking engaged in rail transport services shall conclude the necessary agreements on the basis of public or private law with the infrastructure managers of the railway infrastructure used. The conditions governing such agreements shall be non-discriminatory and transparent, in conformity with the provisions of 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 and safety certification(7)."

(c) paragraph 6 shall be replaced by the following:

"6. Track access to, and supply of services in, the terminals and ports linked to rail activities referred to in paragraphs 1, 2 and 3, serving or potentially serving more than one final customer, shall be provided to all railway undertakings in a non-discriminatory and transparent manner and requests by railway undertakings may be subject to restrictions only if viable alternatives by rail under market conditions exist.";

(d) paragraph 8 shall be replaced by the following:

"8. By 1 January 2007, the Commission shall submit to the European Parliament, the European Economic and Social Committee, the Committee of the Regions and the Council a report on the implementation of this Directive.

This report shall address:

- implementation of this Directive in the Member States and the effective working of the various bodies involved,

- market development, in particular international traffic trends, activities and market share of all market actors, including new entrants,

- impact on the overall transport sector, in particular as regards modal shift,

- impact on the level of safety in each Member State,

- working conditions in the sector, for each Member State.

If necessary, it shall be accompanied by suitable proposals or recommendations on continuing Community action to develop the railway market and the legal framework governing it";

3. in Article 10b(4), point (c) shall be replaced by the following:

"(c) the state of the European railway network";

4. Article 14 shall be deleted.

Article 2

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2005 at the latest. They shall forthwith inform the Commission thereof.

When Member States adopt these measures they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

Article 3

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

Article 4

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 291 E, 26.11.2002, p. 1.

(2) OJ C 61, 14.3.2003, p. 131.

(3) OJ C 66, 19.3.2003, p. 5.

(4) Opinion of the European Parliament of 14 January 2003 (not yet published in the Official Journal), Council Common Position of 26 June 2003 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 2001/12/EC of the European Parliament and of the Council (OJ L 75, 15.3.2001, p. 1).

(6) OJ L ...

(7) OJ L 75, 15.3.2001, p. 29. Directive as amended by Commission Decision 2002/844/EC (OJ L 289, 26.10.2002, p. 30).

STATEMENT OF THE COUNCIL'S REASONS(1)

I. INTRODUCTION

Having regard to Article 71 of the EC Treaty - and also to Article 156 in the specific case of the legislative proposal on interoperability - and in the framework of the co-decision procedure in accordance with Article 251 of the EC Treaty, the Council adopted its common positions on the four legislative proposals of the so-called "second railway package"(2)(3) on 25 June 2003.

In taking its positions, the Council took account of the opinions of the European Parliament in its first reading on 14 January 2003(4), of the European Economic and Social Committee(5) and of the Committee of the Regions(6).

The general aim of the package of legislative proposals is the revitalisation of the railway sector in the European Union; this revitalisation would by and large amount to the completion of the internal market for the European rail sector, for both service providers and manufacturers. Through the abolishment of quasi-monopolies and by means of increased competition, cost savings related to economies of scale may be achieved, as well as more innovation - factors which are a prerequisite for the development of a world-class railway industry in the EU. Furthermore, the competitiveness of this mode of transport vis-à-vis the other modes of transport would be boosted by means of the proposed measures, thereby contributing to the much needed rebalancing of the modal split - particularly in the field of freight transport - with its consequent positive effects on the reduction of both congestion and pollution.

In the above context, the second railway package aims to achieve the necessary progress in the areas of interoperability, safety and market access (for freight transport). Furthermore, in order to perform the highly technical and complex tasks of designing the tools - the Technical Specifications for Interoperability (TSIs), the Common Safety Targets (CST), Common Safety Measures (CSM) - needed to achieve such progress a European pool of expertise is proposed, in the form of a European Railway Agency, which would then have a purely advisory function. The experts from the European Railway Agency would thus form a pool of expertise, aiding in the development of further Community legislation. They should provide independent expertise from a European - rather than a national - perspective.

II. ANALYSIS OF THE COMMON POSITION

Introduction

In view of their clear operational interlinkages, the Commission has presented the various legislative proposals as a package, requesting it to be handled as such. The Council has respected this "package approach", and has reached a single overall agreement on this package, including on the four legislative proposals subjected to the co-decision procedure(7).

The Council, by adopting its common position on the second railway package, has demonstrated its overall support for the general thrust of this legislative package; it is the expression of Council's willingness and determination to bring about the much needed revitalisation of the railway sector in the EU, so that it can recover its fair share of the market. However, it was also important to take into account the complexity of the railway sector, against the background of a number of technical, financial, socio-economic and, in some cases, political considerations.

Specific comments regarding the individual draft directives and the draft regulation

(a) Directive of the European Parliament and of the Council on safety on the Community's railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of railway infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification

Any efforts in pursuing a more effective Community railway system should not be detrimental to existing high safety levels in that system. In fact, any harmonised approach should not only maintain these safety levels but seek to improve them whenever possible and practicable, whilst respecting the principles underlying the functioning of the internal market. With this in mind, the Council conducted a most careful examination of all relevant provisions of this Directive.

For reasons of clarity, a separate article is now devoted to the common safety targets (CST) (Article 7) and the common safety methods CSM (Article 6); furthermore, their more gradual introduction has now been foreseen. Thus, for a first and second set of CST and CSM to be developed, specified deadlines and further details as regards their content are now provided.

The Council agrees that the establishment of a common regulatory framework should not prevent Member States from seeking further improvements of safety levels - beyond those flowing from the common standards - of their railway systems; at the same time the correct functioning of the internal market should not be compromised. Against this background, the Council's common position (Article 8.4) provides that Member States are allowed to introduce, after the adoption of the CST, new national safety rules which require higher levels of safety than the CST. The adoption of such stricter rules should however be preceded by prior consultation of interested parties and the submission of information to the Commission. In cases where such new rules are likely to affect operations of railway undertakings of other Member States on the territory of the Member State concerned, a specific notification procedure to the Commission will apply (Article 8.5).

Furthermore, the Council's common position contains a new article concerning the safety authorisation for infrastructure managers (Article 11). As regards article 12, the provisions for the access to training facilities were strengthened; at the same time, the basic requirements to be met by train staff were deleted, since they would soon be laid down in a technical specifications for interoperability (TSI). As regards the harmonisation of safety certificates (Article 14), it was felt that the intermediate stage with non-binding guidelines was not necessary.

Many more changes of a technical nature were incorporated, among which those regarding the tasks of the safety authority (Article 16), and several changes to the technical Annexes.

The Council was able to accept amendments 4 and 61, and to a certain extent the substance of amendments 12, 16, 37, 56, 57 and 59.

(b) Directive of the European Parliament and of the Council amending Council Directive 96/48/EC on the interoperability of the trans-European high-speed rail system and Directive 2001/16/EC of the European Parliament and of the Council on the interoperability of the trans-European conventional rail system

The Council's common position retains the principle of applying the provisions of the Directive to the entire railway network in the European Union. However, because of a number of financial and economic considerations, it provides for a more gradual introduction of the technical specifications for interoperability (TSI) than proposed by the Commission. A first group of new TSI and/or TSI amendments should now be developed by 1 January 2009 (Article 2(2)); furthermore, the subject matter of the first group of new TSI has now been specified (Article 2(15)). For the application of a specific TSI, further categories of lines and rolling stock have been added in Annex III, as well as the possibility to further subdivide these categories as required. This will allow the specific TSI to be applied in the most cost-effective way. Articles 1(6) and 2(2) expand the possibilities for exemptions from the application of the provisions of a TSI.

Further changes contained in the Council's common position as compared to the Commission's proposal concern a great number of minor technical matters, including those pertaining to the Annexes.

The Council has accepted amendment 8, and believes that in essence its common position contains wording which corresponds to amendments 6, 13 and 15.

(c) Regulation of the European Parliament and of the Council establishing a European Railway Agency

The Council recognises that a European Railway Agency can provide a very useful input into the legislative process and other aspects relating to the revitalisation of the European railways. Against this background, the changes introduced in the Council's common position do not significantly alter the substance of the Commission's proposal. These changes concern the tasks and responsibilities of the Agency, the consultation of other parties, the composition of its Working Parties and the Administrative Board, and the working languages. In several instances, the Council has chosen to draw on similar provisions in the Regulations establishing other Community bodies such as the European Maritime Safety Agency (EMSA) and the European Aviation Safety Agency (EASA).

The Council's common position coincides on many aspects, partly or in substance, with amendments adopted by the European Parliament in first reading, such as amendments 9, 22, 32, 36. As regards the amendments 2, 5, 14 and 35 which concern the composition of the Working Parties and of the Administrative Board, the Council's common position provides for the Working Parties now to be made up of both representatives from the railway sector and the users concerned (Article 3); in a similar fashion, the composition of the Administrative Board has also been altered. For the latter, the composition has been changed, notably by adding one representative per Member State (Article 26).

As regards visits by Agency representatives to Member States, the Council feels that its Article 33 largely corresponds to Parliament's amendment 37.

As regards the issue of the linguistic arrangements for the Agency, Article 35 of the common position now provides for these arrangements to be decided by the Administrative Board; the Council has deemed that this instance would be best placed to make this decision, weighing all factors involved such as cost and efficiency. The Council could thus not accept amendment 38, which it felt would place too large a burden on the Agency's functioning and would run counter to budgetary constraints placed on the Community's budget in general, also taking into account the accession of the new Member States to the Union as from 1 May 2004.

(d) Directive of the European Parliament and of the Council amending Council Directive 91/440/EEC on the development of the Community's railways

In the framework of the overall agreement on Council's common position, the scope and timetable of market access formed most naturally important elements of the overall political compromise achieved by the Council. The Council could therefore not accept the amendments 2 and 4, which aim to widen considerably the scope of this Directive by incorporating the transport of passengers by rail.

The provisions relating to market access in the Council's common position may be summarised as follows:

- railway undertakings shall be granted, on equitable conditions, at the latest by 1 January 2006, access to the entire rail network for the purpose of operating international freight services;

- at the latest by 1 January 2008, railway undertakings shall be granted, on equitable conditions, access to the infrastructure in all Member States for the purpose of operating all types of rail freight services.

Furthermore, by 1 January 2007, the Commission shall submit a report on the implementation of the Market Access Directive. Moreover, it may be noted in this respect that the Commission has presented a declaration stating its intention to present by end of 2003 to the European Parliament and the Council a proposal relating to the introduction of a European driving license for train drivers.

With regard to the aforementioned provisions regarding market access, as well as concerning the date of entry into force, the Council has for the sake of clarity made reference to specific dates, rather than making this date dependent upon the eventual date of publication in the Official Journal, as initially proposed: it has therefore accepted amendment 11. The Council holds that this presentation is a clear signal to all actors involved. Furthermore, Council has agreed on the substance of amendments 1, 5, 7 and 9 which seek to maintain the references to the Trans-European Rail Freight Network (TERFN). In fact, amendments 7 and 9 were accepted to the letter, whereas the other amendments were largely taken into account (cf. Article 1(2)).

(1) This statement applies to all common positions on the three Directives and the Regulation contained in the "second railway package".

(2) The Commission presented its proposals on 25 January 2002.

- Safety: OJ C 126 E, 28.5.2002, p. 332.

- Interoperability: OJ C 126 E, 28.5.2002, p. 312.

- European Railway Agency: OJ C 126 E, 28.5.2002, p. 323.

- Development of the Community's railways: OJ C 291 E, 26.11.2002, p. 1.

(3) This package also contains the "Recommendation for a Council Decision authorising the Commission to negotiate the conditions for Community accession to the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980, as amended by the Vilnius Protocol of 3 June 1999" (doc. 5726/02 TRANS 20).

(4) Not yet published in the Official Journal.

(5) OJ C 61, 14.3.2003, p. 131.

(6) OJ C 66, 19.3.2003, p. 5.

(7) This political agreement concerned the package as a whole and thus included also the adoption of the Council Decision as referred to in footnote 3.